Appellate Court confirms Red Bull’s win in trade dress lawsuit against local competitor

In March 2014 the Appellate Court of Tirana upheld the decision of the First Instance Court of Tirana in Red Bull’s trade dress lawsuit against Albanian energy drink producer Arseni. This decision is now under appeal before the Supreme Court in Tirana.

In June 2012 Red Bull initiated court proceedings on the ground that the defendant’s product design constituted an infringement of Red Bull’s well-known trademark, as well as an act of unfair competition.

The Appellate Court upheld the reasoning of the First Instance Court. Various IP-related issues rarely heard and decided on by the Albanian courts were addressed during the proceedings, and were answered in line with the case law of the Court of Justice of the European Union (ECJ).

Two of the issues that the courts looked into were the criteria for determining what constitutes a well-known mark and whether Red Bull's marks are well known in Albania.

After carefully analysing the evidence submitted by Red Bull, which showed that 97% of the Albanian public recognised the mark RED BULL ENERGY DRINK, both courts acknowledged the well-known status of Red Bull's marks in Albania, pointing out that this percentage was extremely high and that the marks had therefore attained a sufficient level of awareness.

The courts further stated that the blue/silver colour combination and the trapezoid-like graphic element constituted the most distinctive characteristics of Red Bull's marks, and that the marks had acquired distinctiveness through extensive use in the Albanian market.

Another interesting conclusion related to common situations involving well-known marks, such as taking unfair advantage of, and being detrimental to, the distinctive character of a mark or its reputation. After concluding that the Albanian legislation had fully transposed the First Trademarks Directive (89/104/EEC), as well as the ECJ rulings put forward by the plaintiff, the Appellate Court confirmed that the ECJ's rulings constitute an important guideline that the Albanian authorities should follow.

In addition, both courts satisfied the plaintiff’s unfair competition claim, ruling that the similarity of the products' packaging (eg, size and shape) could be taken into account when assessing the likelihood of confusion in the course of trade.

This ruling is interesting in light of the total lack of Albanian case law on unfair competition, and trade dress in particular. There is no legal definition of 'trade dress' under Albanian law; however, the trademark law and the unfair competition law provide a legal basis for protection against copycat packaging or trade dress infringement, as both courts stated.

As case law relating to the enforcement of trademark rights is very limited in Albania, Red Bull’s recent win against a local importer is encouraging news for trademark owners seeking to enforce their rights in Albania. The courts also showed willingness to follow the ECJ's criteria, finding them to be an important guideline for Albanian practice.

Even though the decisions of the First Instance Court and the Appellate Court do not create judicial precedents in Albania, this particular decision is of great importance in that it paves the way for further consideration of the ECJ's rulings by the Supreme Court.

Irma Cami, PETOŠEVIĆ, Tirana