11 June 2018Trademarks

BBQ trademark up in flames as Red Bull opposition succeeds

Energy drinks brand Red Bull has successfully opposed a UK trademark application for ‘Red Bull BBQ Grills’.

On Thursday, June 7, the UK Intellectual Property Office (IPO) upheld the Austrian company’s opposition after agreeing that the trademark would cause a likelihood of confusion with Red Bull’s brand.

UK-based CookinPellets had filed the mark in class 11, citing “barbecue smokers and grills, pellet smokers and grills”. The applied-for mark consists of a picture of a bull’s head between the words ‘Red Bull’ on the left and ‘BBQ Grills’ on the right.

In its opposition, Red Bull relied on two earlier marks: one for ‘Red Bull’ with a picture of two bulls fighting beneath the brand name (international number 1115937), and the word mark ‘Red Bull’ (UK number 3129030).

Heather Harrison, of the IPO, considered the possible similarity between the applied-for mark and Red Bull’s figurative mark.

As both marks use the words ‘Red Bull’, there is an “obvious point of visual similarity” between them, she said, but noted that the respective bull devices are “quite different”.

“The opponent’s mark features two bulls, in lifelike outline, whilst the device in the applied-for mark is a cartoonish bull’s head,” Harrison found, confirming that the marks are visually similar to a medium degree.

She added that the device component of each mark would not be verbalised, so Red Bull’s mark would be spoken as ‘Red Bull’.

“The later mark might be articulated in full but, as ‘BBQ Grills’ has little or no distinctive character, it is more likely that it will be referred to as ‘Red Bull’ only,” Harrison found. “If the former, the marks are aurally similar to a medium degree; if the latter, the marks are aurally identical.”

She added that the marks are conceptually identical or, alternatively, similar to a very high degree.

Harrison found that because of the differences between the marks, particularly the different representations of the bulls, it would be unlikely for a consumer to make a mistake and confuse the marks. Therefore, she said, there is no likelihood of direct confusion.

She added that because Red Bull has never marketed goods in class 11 and its mark was published (August 2014) less than five years before the applied-for mark (December 2016), the comparison of goods and services must be made based on the relevant marks’ specifications rather than on use.

According to Harrison, the earlier mark contains the wording “apparatus for […] cooking”, so barbecue smokers and grills, and pellet smokers and grills—the applied-for products—all fall under the broad term “apparatus for […] cooking”.

Harrison therefore concluded that there would be indirect confusion, because despite any differences that exist, “the level of aural similarity and the absence of a material conceptual distinction between the marks will, for identical goods, lead the average consumer to conclude that the goods are produced by the same or an economically linked undertaking”.

She awarded Red Bull £1,300 ($1,700) in costs.

According to evidence submitted by Red Bull, the company has had at least a 25% share of the UK energy drinks market since 2012. This compares with Lucozade (33%) and Monster (14%), the other leaders in the market.

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