Red Bull has submitted EU trademark applications in 2002 and 2010 for the combined colors of blue and silver for energy drinks. The General Court of the European Union ('the EU General Court') recently annulled these registrations because the marks were not displayed with sufficient precision.

Background

The Red Bull brand with the logo of a bull and the colors blue and silver is best known for energy drinks. In 2002 Red Bull submitted an EU trade mark application for the color combination blue and silver for class 32 ('Energy drinks'). The description in the graphic representation in the application describes the ratio of the colors as 50-50.

In 2010, a second EU trade mark application was submitted, which concerned the same graphic representation, but with a different description - namely that the two colors will be 'applied in equal proportions and suitable'. Initially, the applications were approved by the European trade mark office on the basis of acquired distinctive character through long-term and intensive use (integration), but the Polish company Optimum Mark filed an application for a declaration of invalidity.

Assessment

The European trade mark office declared the mark invalid in 2013 due to a lack of distinctive character. This opinion was maintained by the Chamber of Appeal of the European trade mark office.

Red Bull did not leave it at all and filed a procedure with the EU General Court. The EU General Court recently confirmed the deletion of the registrations and annuls the registrations because they do not meet the requirements of a trademark.

Colors and color combinations can only be registered as a trademark if:

  • it is a sign;
  • which is prone to graphical representation [i] ; and
  • is able to distinguish the products and services of a company from those of another company.

Signs consisting of a combination of two or more colors must, according to the Court of First Instance, contain ' a systematic arrangement which links the colors in question in a predetermined and sustainable manner '. The ordinary shape and juxtaposition of two or more colors or just mentioning the colors " in all conceivable forms " does not meet the requirements of accuracy and durability and therefore can not function as a color mark. This would be contrary to the legal certainty of the consumer, who is therefore unable to repeat his purchase experience with certainty. The description as submitted by Red Bull also implies too many possible color combinations according to the Court of First Instance.

The requirements for protection are strict because otherwise it will be difficult for other providers to get protection for color combinations. The judgment shows that it is necessary to display the color combination in a systematic format in a uniform and predetermined manner. To avoid refusal to register, it is important to advise you on the correct way of filing a trademark application.