Justified declaration that Red Bull trade marks consisting of a combination of the colours blue and silver per se are invalid
31-07-2019 Print this page
Justified declaration that Red Bull trade marks consisting of a combination of the colours blue and silver per se are invalid: General Court correctly applied the principles stemming from the Heidelberger Bauchemie judgement (IPPT20040624), considering that the mark was not systematically arranged in such a way that the colours concerned are associated in a predetermined and uniform way.
Red Bull tried to register the combination of two colours per se (see above) as a trade mark for energy drinks. In 2003 and 2010 EUIPO registered two trade marks Red Bull had filed, with an indication that it had acquired distinctive character through use. Next, in 2011 and 2013, Optimum Mark filed an application for a declaration that both trade marks were invalid.
The Cancellation Division of EUIPO declared the two marks in question invalid. The First Board of Appeal dismissed the appeal against the decision, considering that the trade marks do not satisfy the requirements of precision and durability. By the judgment under appeal, the General Court dismissed the actions of Red Bull in their entirety.
Red Bull is also unable to benefit from the present appeal. The Court considers that the General Court correctly applied the principles stemming from the Heidelberger Bauchemie judgement (IPPT20040624), considering that the mark was not systematically arranged in such a way that the colours concerned are associated in a predetermined and uniform way. The General Court did not err in law in concluding that the registration of a mark which allows for a plurality of reproductions that are neither determined in advance nor uniform is incompatible with Article 4 of the Community Trade Mark Regulation and the Heidelberger Bauchemie judgment.
According to the Court and contrary to what Red Bull claims, requiring a mark consisting of a combination of colours to exhibit a systematic arrangement associating the colours in a predetermined and uniform way cannot transform that type of mark into a figurative mark, since that requirement does not mean that the colours must be defined by contours.
IPPT20190729, CJEU, Red Bull v EUIPO
