Recently, the maker of Red Bull energy drinks filed a notice of opposition against Old Ox Brewery’s trademark registration application, arguing that registration should be denied due to likelihood of confusion. The opposition reasons that oxen and bulls “both fall within the same class of ‘bovine’ animals and are virtually indistinguishable to most consumers.”
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In a likelihood of confusion claim, two of the main factors considered (among others) are (1) similarity of the marks, and (2) relatedness of the goods using those marks. On its face, OLD OX bears little resemblance to RED BULL; the marks do not sound or look the same. Instead, Red Bull is relying on the similar meanings of the marks; that is, the name of a bovine animal, preceded by an adjective. Whether the average customer would actually confuse the source of two products as the same is typically a relatively straightforward inquiry. Insofar as the relatedness of craft beer and energy drinks, though, the question becomes more complex. The scope of products produced by and associated with microbreweries is increasingly expanding from small-batch beers to distilled spirits, wines and sodas. And it may be the potential of small, local craft breweries that that has Red Bull rushing to protect its mark.
In response to Red Bull’s petition, the President of the small Ashford, Virginia microbrewery posted a letter on Old Ox Brewery’s website making a plea for the “big Red Bully” to drop its trademark dispute, and agreeing in return not to make energy drinks. However, Red Bull reportedly declined the offer, seeking a more restrictive resolution: that Old Ox would not use any red, blue or silver in its logo, or produce any soft drinks or energy drinks going forward.
To some, Red Bull’s reactions to Old Ox Brewery’s application may seem overreaching; it is not the first time we’ve come across a classic David versus Goliath tale that does little more than generate bad press. And, in fact, the USPTO, a few years back, made a request for public comment on trademark bullying by larger mark holders against smaller businesses in the context of a similar energy drink versus beer battle.
In its defense, though, if not Red Bull, then who will protect and enforce its rights to use its marks? The Lanham Act’s double-edged sword is that trademarks do not have clearly delineated boundaries; on the one hand, it permits more expansive trademark rights, but on the other, there may be increased likelihood of confusion around the source of similar marks. The megabrand may indeed be concerned about the potential of increasingly popular small beverage producers. (This is not, after all, Red Bull’s first rodeo: in 2013, it filed a similar complaint against UK-based microbrewery Redwell Brewing, claiming the “Redwell” mark was confusingly similar because it started with ‘Red’ and ended with two ‘l’s.’ Ultimately, Redwell agreed it wouldn’t make energy drinks, and Red Bull withdrew its claim.) If Red Bull doesn’t enforce its rights to use its marks, the company could lose its rights in the marks altogether.
Insofar as how the foam will flatten in this battle of the beverages, stay tuned – Trending Trademarks will keep you up to date on any developments. In the meantime, to better understand how you can police and protect your trademark rights, do not hesitate to contact one of our IP attorneys.