Blue and silver colour combination infringes RED BULL mark

Netherlands

In Red Bull GmbH v United Softdrinks BV (KG ZA 03-674/YT), the District Court of Utrecht has ruled that (i) Red Bull's trademark for the blue and silver colour combination used on its energy drink cans qualifies as a valid colour mark, and (ii) United Softdrinks' (USD) use of similar colours on its energy drink cans infringed that mark.

In 1987 Red Bull started the production and sale of an energy drink under the word and pictorial mark RED BULL in a packaging bearing a print with the dominant colours (metallic) blue and silver. This product is now sold in over 55 countries worldwide. Red Bull has also applied for a Community colour mark for the colour combination blue and silver, and for a Benelux mark for the colour combination "metallic blue, metallic grey".

In early 2003 USD launched an energy drink under the name London in a can having as its principal colours metallic blue and silver grey. Red Bull filed proceedings against USD, arguing that the use of these colours infringed its trademark rights. In its response, USD stated that Red Bull's mark was invalid.

The district court dismissed USD's defence that the RED BULL colour mark registration did not meet the conditions for a colour mark as laid down by the European Court of Justice in the Libertel Case (see The future of colour registration is orange). The district court noted that Libertel involved a single colour, whereas the instant case concerned a combination of two colours. Therefore, the conditions as set out in Libertel did not apply in this instance. Furthermore, Red Bull's trademark could not be held to be invalid as it has sufficient distinctive character by virtue of the fact that it has acquired secondary meaning.

Following a comparison between USD's can and Red Bull's colour mark, the court ruled that neither USD's use of the colours in a different proportion, nor the differing words used were decisive factors going towards reducing the likelihood of confusion.

Accordingly, the court concluded that USD had infringed Red Bull's trademark rights.

Michiel Odink, Allen & Overy, Amsterdam

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