August 2018. Red Bull has suffered a painful defeat. On 23 May, the Opposition Division of European Trademark Office EUIPO ruled that the device mark Big Horn did not infringe Red Bull’s logo and could therefore be registered as a European trademark for energy drinks.
Essentially, EUIPO concluded that the Big Horn logo was nothing like Red Bull’s. The Red Bull logo depicts two bulls running towards each other, whereas Big Horn’s features two leaping ibexes. The colours used and the word Big Horn also provided sufficient distance, the trademark office concluded.
This is a surprising outcome, given that Red Bull almost always wins the many legal proceedings and oppositions it files in defence of the Red Bull trademark and its distinctive logo.
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We therefore question whether this was the right decision. First of all, Red Bull based its opposition on the registration of the two bulls logo, i.e. without the word Red Bull. If you compare this with the Big Horn logo they are quite similar, given that both depict two animals leaping towards each other with a yellow ball in the background.
Second, it appears to disregard the worldwide reputation of the Red Bull trademark. In law, the rule tends to be that the stronger and more well known a trademark, the more protection it enjoys. You’d think this would have been given more weight.
Finally, if you look at how the Big Horn logo is used in practice, you’d be forgiven for feeling a sense of injustice. After all, what does the silver-blue delineated background inevitably remind you of? Obviously, when judging the specifics of the case, EUIPO couldn’t have taken the use of the logo into account; it could only consider the trademark as it was registered, which was without the distinctive blue-grey drinks can. Even so, we think the venerable Red Bull brand has been sold short. What’s the betting it lodges an appeal against the decision and in a month or two emerges as the winner after all?