The Second Board of Appeal of the Office for Harmonization in the Internal Market (the OHIM registers the Community Trade Mark in the European Union) produced a 20-page report last week.
Allowing Sun Mark’s application to proceed, the Board ordered Red Bull to pay Sun Mark’s costs.
The Austrian energy giant had vehemently opposed UK rival Sun Mark’s application to register the name ‘Bulldog’ – initially filed in July 2010 – arguing potential confusion with its own registered trademarks ‘Bull’ and ‘Red Bull’.
Prevents a level playing field?
Dr. Rami Ranger, chairman of Sun Mark, said: “This decision restores our faith in our arguments that no individual company can abuse its ownership of certain trademarks to monopolize use of common descriptive names, such as ‘Bull’ to prevent its competitors from competing on a level playing field.”
He added: “The EU encourages fair and free competition. The Board of Appeal has concluded that in this case it would have been unfair to allow Red Bull’s opposition to succeed.”
Making its registration application on July 1 2010 to OHIM, Sun Mark argued that Red Bull should not be allowed to monopolize all references to soft drink names incorporating the word ‘Bull’ and thus benefit from having multiple filings for trademarks incorporating this word.
The firm said it provided the Board of Appeal with evidence to show that no consumer in the UK, where Sun Mark is based, had been confused into believing that Sun Mark’s products were or might become associated with those of Red Bull.
Little or no consumer confusion
In its report the Board of Appeal said that likelihood of confusion must be assessed globally by looking into any visual, aural or conceptual similarity given by the marks, bearing in mind their distinctive and dominant components.
The Board said that the 'Bull' and 'Bulldog' signs had a low degree of visual similarity, that the marks portrayed a low degree of phonetic similarity and the signs had different conceptual meanings.
Beyond the finding of little or no actual confusion, the Board of Appeal concluded that, because of these clear differences, Red Bull’s opposition should fail.
“The mere coincidence of the marks in their beginnings, of these four letters, taking into account their role in the overall impression of the signs, cannot lead to the conclusion that the public will confuse the signs in dispute, even when they identify identical goods on the same market," the body said.
Red Bull had not replied to a request for comment as we went to press with our newsletter (10/12/12).