You may have been aware of the long-running case between famous energy drink company, come sports sponsor, Red Bull GMBH (“Red Bull”), and a UK company Big Horn UK Limited (“Big Horn”) (Red Bull GmbH v Big Horn UK Ltd & Ors  EWHC 124 (Ch))
Red Bull launched its energy drink in Austria in 1987, and has since grown its products and reputation to be recognised worldwide. By January 2019, Red Bull had a market share in the UK of over 30% for energy drinks. Red Bull’s brand was recently valued at €15.111m. Part of Red Bull’s recognisable trademarks include:
- the two bulls charging at each other in front of a sun, and about to collide;
- the geometric blue and silver design; and
- the single bull in a “charge” position;
which can be seen in the table below.
In 2016, an application was made for Big Horn for an EU trademark bearing two rams charging at each other in front of a golden sun and about to collide. Big Horn was to use this design on, among other things, energy drinks.
Red Bull opposed this application. However, Big Horn began to sell its energy drinks with their design in the UK despite Red Bull’s opposition.
Under EU regulation, it is currently possible for owners of a trademark (such as Red Bull) to prevent third parties (such as Big Horn) from using in the course of their trade, a sign which identical, or similar, to the trademarked image, in relation to goods which are identical or similar, which is likely to lead to confusion.
Further, an owner may prevent a third party where the sign is identical, or similar, and that use of that sign causes unfair advantage of, or is detrimental to, the trademarked image.
The Court held that there was a similarity in the visual and conceptual images, and that both companies used a silhouette of a “large horned and hooved animal, with the head positioned as if charging or running, with the front legs bent in almost exactly the same position”.
The Court further held that Big Horn had been “free-riding” and that the average customer would perceive the Big Horn product as “cheaper or alternative versions of Red Bull’s products, stimulating sales…in a way that would not have occurred” had its product not been so similar to that of Red Bull’s products.
This case shows that the images do not have to be identical, but as long as there are enough similarities, there could be a trademark infringement. It is therefore highly advisable that, before using and trademarking an image, you should ensure there are no similar images in the market as your product.