30 July 2019TrademarksRory O'Neill

Red Bull loses silver-blue colour mark appeal

Red Bull has failed in its bid to register a blue and silver colour combination as a trademark, ending an unsuccessful series of appeals.

The  Court of Justice of the European Union (CJEU) yesterday, July 29 upheld previous rulings that the energy drink maker had not met EU requirements for registering colour marks.

Red Bull owned two marks for a combination of blue and silver, one registered in 2005 and the later mark registered in 2011, both in class 32 covering energy drinks.

The first mark described an “approximately 50% ratio” between the two colours, while the second mark indicated that “the two colours will be applied in equal proportion and juxtaposed to each other”.

In 2011, Polish company Optimum Mark filed an application with the European Union Intellectual Property Office (EUIPO) to have Red Bull’s most recent mark invalidated on the grounds that its description of the colour arrangement was imprecise.

After Optimum then opposed Red Bull’s earlier 2005 mark, the EUIPO’s cancellation division invalidated both marks in October 2013 on the grounds that they were “not sufficiently precise”.

The EU General Court upheld the cancellation division’s ruling in 2017, prompting Red Bull to appeal the ruling to the CJEU.

In yesterday’s ruling, however, the CJEU backed the General Court’s finding that indicating the ratio of blue and silver did not “constitute a systematic arrangement associating the colours in a predetermined and uniform way”.

According to the CJEU, the description of the marks could result in numerous combinations with respect to the arrangement of the two colours.

The CJEU agreed with the General Court’s ruling that marks, which allow for a “plurality of reproductions that are neither determined in advance nor uniform” were incompatible with EU trademark law.

The court ordered Red Bull to bear costs in the case.

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