Red Bull wins fight with Blue Parrot

Netherlands

In Red Bull GmbH v Blue Parrot (Case 94395/KG ZA 03-303), the District Court of Den Bosch has ruled that the defendant nightclub's policy of serving energy drinks sold under the brand name 'Xi Climax' to customers who had specifically asked for a Red Bull drink, without informing them of this fact, infringed the plaintiff's rights in its RED BULL mark.

Red Bull, an Austrian company, markets a very popular energy drink under the trademark RED BULL. It brought a complaint against the Blue Parrot nightclub after discovering its policy of serving customers with a competitor's energy drink, sold under the brand name 'Xi Climax', even if the customers had specifically requested a Red Bull drink. Red Bull further argued that the Blue Parrot's staff had not informed customers that they had received an Xi Climax drink and not a Red Bull. Blue Parrot denied that its policy infringed Red Bull's rights in its mark. It contended that it does not sell Red Bull and that a number of signs located in the nightclub that advertise Xi Climax serve to notify customers that they will be served with that brand of energy drink.

The district court rejected Blue Parrot's defence holding that by failing to inform customers that the drink they had received was not the Red Bull drink they ordered, Blue Parrot was suggesting that the drink served was a Red Bull. This, said the court, had the potential to cause confusion and infringed Red Bull's trademark rights. It stated that Blue Parrot must take action to prevent consumer confusion, suggesting that its staff should tell customers that the Blue Parrot does not sell Red Bull and that a rival brand can be served in its place.

The court decided that it was unlikely that Red Bull had suffered any loss of turnover and limited the damages award to €10,000.

Paul Steinhauser, Steinhauser Hoogenraad Advocaten, Amsterdam

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