Montag, 3. September 2007

Red Bull: Colour CTM under Fire

Red Bull's famous can enjoys extensive trademark protection. The name, the double bull device, the background design and the colours of the can per se (blue/silver) are all protected through separate trademark registrations.

Lately, the colour trademark (CTM 002534774) has been the subject of two separate attacks. XL Energy Marketing Sp. z o.o. with registered office in Poland and Boost Drinks Ltd., based in the UK, have both challenged the validity of the mark. Judging from the sheer amount of documents submitted, this looks like a hard-fought battle.

Red Bull's colour mark was registered post-Heidelberger (i.e. after the ECJ's decision rejecting Heidelberger Bauchemie's trademark application for a two-colour trademark). In its decision, the ECJ ruled that
"a graphic representation consisting of two or more colours, designated in the abstract and without contours, must be systematically arranged by associating the colours concerned in a predetermined and uniform way." (para. 33)
Red Bull's colour trademark, depicted below, is described as follows:

"Protection is claimed for the colours blue (RAL 5002) and silver (RAL 9006).The ratio of the colours is approximately 50% - 50%."

It remains to be seen whether this will suffice to meet the ECJ's criteria. Even though the mark was registered post-Heidelberger, it was applied for well before that decision.

The outcome of the two cancellation actions will provide some guidance as to how OHIM intends to interpret the criteria set by the ECJ in Heidelberger, which are criticised by many (e.g. here) as as hard act to follow for any colour trademark application consisting of more than one colour.

1 Kommentar:

Anonym hat gesagt…

The Swiss Bundesverwaltungsgericht has rejected in a recent decision (cf. the appeal of Red Bull against a negative decision by the Swiss Federal Institute of Intellectual Property.