Red Bull’s wings clipped by EU Court over colour trade marks

The world of trade marks in the EU, as we know it, is starting to see changes. Amongst those changes is the longevity of non-traditional marks.

There as been much debate and back and forth decisions on whether 3D trade marks will continue to hold protection, but other non-traditional marks are also under fire, including colour trade marks.

There have been one or two well reported cases involving the successes and failures to register a colour as a trade mark. Cadbury’s failed purple bid is arguably the most famous one of recent times.

It seems that this streak has continued as Red Bull have failed to persuade the EU General Court that their colour trade marks are valid.

For those who enjoy a perk of instant energy, a silver and blue can instantly can be recognised as coming from Red Bull.

This is why the brand wished to protect this colour combination.

In 2002, Red Bull sought registration for a mark which was 50% silver and 50% blue in respect of class 32 for energy drinks. They filed a second application in 2010 for a mark with the description ‘the two colours will be applied in equal proportion and juxtaposed to each other’.

Red Bull made use of the acquired distinctiveness avenue which allowed them to successfully register the two marks.

However, Red Bull hadn’t gotten away with it completely as the marks were challenged by Optimum Mark.

They argued that the marks were not valid as even with Red Bull’s reputation, they had not acquired distinctiveness.

The claim was first considered by the EUIPO Cancellation Division in 2013 which found the marks were invalid as they were devoid of distinctive character.

On appeal, this decision was upheld by the First Board of Appeal in 2014.

Red Bull appealed the case up again to the EU General Court who considered the mark this year.

The court said that colours and colour combinations can be registered as trademarks under the regulation if they are (1) a sign, (2) capable of being represented graphically and (3) capable of distinguishing the goods or services of one undertaking from those of others.

The Court held that the Board of Appeal was right to find that the marks registered by Red Bull allowed for a number of different colour combinations. The Court therefore ruled that the marks were not precise or uniform enough to be valid trade marks.

Again, previous decisions were upheld and Red Bull’s marks were declared invalid.

While they do have another avenue of appeal, to the Court of Justice for the European Union, it is likely they will receive the same answer.

It will be interesting to see the outcome of any upcoming colour trade mark cases, and their impact on EU trade marks as we know them.

By Ellis Sweetenham