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General Court of the European Union - Red Bull GmbH v/ OHIM

Decision date

2015-02-05

Decision No.

T 78/13

Nature

Trademarks

Country

European Union

Jurisdiction

General Court (European Union)

Parties

RED BULL GmbH v/ OHMI

The marks BULL and RED BULL are similar to BULLDOG

Red Bull opposed a Community trademark application for BULLDOG (word mark) claiming protection for “mineral and aerated waters; energy drinks; isotonic drinks; (non-alcoholic) aerated drinks (and beers); fruit-flavoured aerated drinks; fruit drinks and fruit juices; non-alcoholic drinks” in Class 32.

The opposition was based upon a number of prior trademarks BULL and RED BULL as well as on their reputation within the European Union pursuant to Article 8(5) of Regulation No 207/2009 (the “CTMR”).

Although the opposition was successful before the OHIM Opposition Division, it was subsequently annulled by the Second Board of Appeal of OHIM.

In particular, the Board of Appeal found that although the goods were identical, as regards the comparison with the earlier word marks BULL, the signs at issue had a fairly low degree of visual and phonetic similarities and were conceptually different, and as regards the comparison with the earlier word marks RED BULL, they had a low degree of visual and phonetic similarity and were conceptually different. It relied primarily on the conceptual differences between the signs in holding that there was no likelihood of confusion for the purposes of CTMR Article 8(1)(b).

The Board of Appeal also found that, because the marks at issue were different overall, one of the conditions laid down in CTMR Article 8(5) was not satisfied and therefore Red Bull’s claims grounded on that provision was also rejected.

The General Court, however, in its decision of February 5, 2015 (Case T-78/13, Red Bull GmbH v. OHIM-Sun Mark Ltd), annulled the Board of Appeal’s decision.

The Court criticized in particular the finding that the signs would be perceived as conceptually dissimilar in a substantial part of the European Union. Rather, it considered that the signs would have a low degree of similarity for the English-speaking public and would not be comparable conceptually for the majority of the relevant public. Consequently, it held the signs resemble one another overall.

Further, the Court noted that the Board of Appeal failed to take into account, in the assessment of the likelihood of confusion, the fact that the products at issue were completely identical. Given, first, how important the fact is that they are identical and, second, the conclusion, reached on the overall resemblance of the signs at issue, it held that there was a likelihood of confusion.


T78/13 - RED BULL GmbH v/ OHIM

5 February 2015
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