The combination word mark R.E.D. RÓNA ENERGY DRINK was applied for with respect to goods in Classes 7 and 32 (Figure 1). The owner of the RED BULL mark filed an opposition based on its seven word and figurative marks. In addition, the opponent filed ads, short films and sales figures as proof of the reputation of its RED and RED BULL marks.
The applicant argued that there was no likelihood of confusion, as the term 'Róna' (ie, plain) was the distinctive element of the applied-for mark. Further, the term 'red' was included in its mark as an acronym for 'Róna Energy Drink', which comprised the second line of wording in the combination mark.
The Hungarian Intellectual Property Office (HIPO) allowed the opposition and rejected the application. It held that the opponent had proved the reputation of its marks. Further, the full stops between the letters 'R', 'E' and 'D' did not exclude the likelihood of confusion, as consumers may have been led to believe that this was a new product of the opponent. As regards Class 7 (beverage vending machines), the HIPO held that the reputation of the RED BULL mark also applied to this type of good.
The applicant requested a review by the Metropolitan Tribunal, which was also unsuccessful, albeit on slightly different grounds. The tribunal held that only the opponent's RED BULL marks were reputed (and not its RED and RED ENERGY marks). However, it found that the RED BULL marks were confusingly similar to the applied-for mark, as the central element of the applied-for mark was the acronym 'R.E.D.' (1.Pk.22.032/2017).
The RED BULL mark, which is of Austrian origin, is undoubtedly well known in Hungary. The Budapest air races – in which airplanes fly over the Danube and occasionally under bridges – have contributed greatly in this respect.
The distinctive element of the applied-for mark (ie, Róna) had undoubtedly been used in Hungary before the applicant filed its mark (there is evidence of intensive publicity of this word since 1981). The word, which was often used in Hungarian 19th century literature, evokes nostalgia and is also associated with non-alcoholic drinks. This explains why the applicant fought so vigorously to register its mark.
However, as the dominant element of the applied-for mark was 'R.E.D.' the decisions of the HIPO and the Metropolitan Tribunal are convincing. Further, it cannot be excluded that when introducing non-alcoholic and energy drinks, the applicant had intended to exploit the RED BULL mark's reputation, although this was not proved.
Notably, the European Court of Justice came to a similar conclusion in Red Bull v Bulldog (C-65/12), which also concerned the reputation of the RED BULL mark.
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