THE PARTY DRINK

In a recent judgment, Red Bull has lost its trademark dispute over its earlier mark “VERLEIHT FLüGEL”.

In 1997, Asolo had filed an application for registering a EU trade mark for the word sign ‘FLüGEL’ in class 32 (Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for the preparation of drinks) and class 33 (Alcoholic drinks except beers). Red Bull had registered its mark VERLEIHT FLüGEL in class 32 for energy drinks.

A registered EU trade mark may be declared invalid at the request of the proprietor of an earlier trade mark if there is a likelihood of confusion because of its identity with or similarity to an earlier trade mark and because of the identity or similarity of the goods or services covered by the trade marks. The Court has clearly stated that the likelihood of confusion arises when the marks are identical or similar and the goods or services covered by them are also identical or similar.

Red Bull had filed an application in 2011 for declaring the EU trade mark FLüGEL as invalid based on its earlier marks VERLEIHT FLüGEL in Germany and RED BULL VERLEIHT FLüGEL in Austria.

The deciding factor for this case was the slightly different Nice classes and corresponding goods in those classes. The European Court of Justice (CJEU) has held that an alcoholic drink and an energy drink are not similar even if they are mixed, consumed or marketed together. The CJEU has pointed out that the Austrian and German public (where Red Bull had registered its marks) are well aware of the distinction between alcoholic and non-alcoholic beverages. It has clarified that similar or identical marks can coexist if the goods or services concerned are not similar or identical. In this case, there was no reason for declaring the marks invalid even if there was slight similarity between the alcoholic drink and the energy drink.