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Are Red Bull really being trade mark bullies?

Posted on Aug 19, 2013 by Andy Harris  | Tags: trade mark, trade mark infringement, IP dispute  | 0 Comments

Andy Harris, Head Of IP & Commercial Contracts

By Andy Harris

Another David and Goliath trade mark spat hit the headlines recently, with energy drinks giant Red Bull threatening small Norwich micro-brewery Redwell with trade mark infringement proceedings. The dispute arose when Redwell attempted to register its name as a trade mark in May.  Following strong support for the brewery via social media, Red Bull was reported to have backed down.  However were they ever really the bad guys here? 

A risk of confusion?

Red Bull claimed the name Redwell could "confuse" customers and "tarnish" Red Bull's trade mark. In their letter to Redwell, Red Bull claimed: "The term 'well' is merely descriptive and therefore of no distinctive character at all. Furthermore the term 'bull' and the term 'well' share the same ending and just differ in two letters. The ending ’ll’ is identical and therefore the terms Red Bull and Redwell are confusingly similar from a visual as well from a phonetical point of view”.

A lot of press coverage suggested that Red Bull were living up to their name too much here and being rather bullying in their dealings with a company with only 8 staff.   After all, surely nobody is really going to be confused between Red Bull’s energy drinks and beers brewed by Redwell?

A lot of bull?

Although it is easy to see disputes of this nature as examples of large brands being over-zealous in protecting their brand, this might not be the case here.   When Redwell had attempted to register its name in class 32, it didn’t just include beer and alcoholic drinks. It also referred to  “mineral and aerated waters; non-alcoholic drinks; fruit drinks and fruit juices; syrups for making beverages.”    Red Bull has various trade marks protecting its brand in this class. 

Although Redwell has said it never had any intention to enter the energy drinks market, how would Red Bull know that?   Was Red Bull not perfectly entitled to challenge Redwell when it appeared that Redwell were moving into the non-alcoholic drinks market?    And did Red Bull really ‘back down’ due to the negative social media comment?  It may be that Red Bull simply wanted an assurance from Redwell that it would not be entering the energy drinks market, and once that was obtained, Red Bull were happy to leave matters alone.  

As matters are now settled we will never know.  However despite the numerous David and Goliath pieces in the press, this is perhaps less an example of David triumphing over Goliath and more an example of David demonstrating the value of social media as a PR tool.

Andy Harris

@AHarris130

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