The European General Court has annulled a decision of the EUIPO’s Board of Appeal which had held that a European Union Trade Mark for “FLÜGEL” was invalid in respect of alcoholic beverages as well as alcoholic essences and extracts.
In 2011 Red Bull applied to cancel a European Union Trade Mark Registration for “FLÜGEL” belonging to a company called International Licensing Services, a predecessor to the current owner, Asolo Ltd. “FLÜGEL” is the German word for “WINGS” and is the name given to the applicant’s premixed vodka based energy drink. The mark was registered for “beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for the preparation of drinks” in Class 32 and “alcoholic drinks (except beers)” in Class 33.
Red Bull based its cancellation action on 2 of its earlier national Austrian trade marks, namely “VERLEIHT FLÜGEL” (which translates to “GIVES YOU WINGS”) and “RED BULL VERLEIHT FLÜÜÜGEL” (“RED BULL GIVES YOU WIIINGS”). Both of these marks were registered for “energy drinks” in class 32.
In 2014 the EUIPO’s Cancellation Division held that there was a possibility that the owner of the contested mark could take unfair advantage of Red Bull’s reputation in its earlier mark “VERLEIHT FLÜGEL” and denied its claim that Red Bull had acquiesced to its use in Austria.
Asolo Ltd appealed and in 2016 the EUIPO’s Board of Appeal upheld the Cancellation Division’s decision, holding that “energy drinks” in Class 32 were similar to “alcoholic drinks (except beers)” in Class 33 because energy drinks and alcoholic drinks are often mixed and consumed together. The Board also agreed with the Cancellation Division’s findings that “alcoholic essences; alcoholic extracts; fruits extracts [alcoholic]” in Class 33 were similar to “Alcoholic drinks (except beers)” in Class 33 on the basis they consist of preparations for making alcoholic beverages and can be mixed with “energy drinks” and/or consumed together.
Findings of the Court: The General Court rejected the Board of Appeal’s decision on the basis that alcoholic drinks and energy drinks cannot be considered similar simply because they can be mixed, consumed or marketed together given that these goods have different intended purposes and uses, depending on the presence or absence of alcohol in their composition. The Court also said that the Austrian public is aware of the distinction between alcoholic and non-alcoholic drinks and will indeed make that distinction when comparing Red Bull’s non-alcoholic energy drink with the applicant’s “FLÜGEL” alcoholic energy drink. A copy of the decision can be found here.