This decision emphasises the importance of careful drafting when submitting trade mark applications, particularly in the context of colour marks where the European Courts continue to set a high threshold for validity.
In 2005 and subsequently in 2011, Red Bull registered two EU trade marks seeking to protect its blue and silver colour branding (most frequently seen on its drinks cans) for ‘Energy drinks’ in Class 32. The trade mark applications were accompanied by descriptions which were intended to provide clarity as to the protection sought. The first described the colour combination as being in a ratio of "approximately 50%-50%"; and the second specifying that “the two colours will be applied in equal proportion and juxtaposed to each other".
The marks were successfully registered on the basis of distinctive character acquired through use, as opposed to the marks being considered to be inherently distinctive.
In 2013, following an application for a declaration of invalidity filed by a third party, the EUIPO invalidated both marks on the grounds that the marks were ‘not sufficiently precise’. The EUIPO’s decision was subsequently upheld by both the EUIPO Board of Appeal and the General Court, leading to an appeal by Red Bull to the CJEU.
The CJEU judgment
The CJEU dismissed the appeal and upheld the General Court's finding in 2017 that the two marks lacked the required precision and clarity to be validly registered. In doing so, the CJEU made clear that where a trade mark application is accompanied by a verbal description, that description must serve to clarify the subject matter and scope of protection sought. The descriptions used by Red Bull were sufficiently vague to permit numerous different designs and combinations to fall within them. The General Court’s finding that the lack of precision rendered the marks incompatible with European trade mark law was upheld.
Obtaining trade mark protection for distinctive colour combinations can be an effective tool for brand owners when it comes to enforcement. The key to success is ensuring that the representation of the mark is sufficiently clear and precise. However, it can be difficult for rights holders to achieve the right balance between clarity and precision for registration purposes and the need to obtain protection which is sufficiently broad for enforcement purposes.