Trade mark infringement of "Red Bull" by "Fucking Red"?

The Federal Patent Court (BPatG) had to clarify whether the trade mark "Fucking Red" infringes the well-known mark "Red Bull" because the marks are confusingly similar. Both marks are registered for identical goods and services.

Photo: Schaller

An entrepreneur from Pulheim registered the trade mark "Fucking Red" with the German Patent and Trade Mark Office (DPMA) in 2011 for the following goods and services:

Nice Class(es) 25:
Clothing, footwear and headgear
Nice Class(es) 32:
Beers, mineral waters and carbonated waters and other non-alcoholic beverages, fruit beverages and fruit juices, syrups and other preparations for the preparation of beverages
Nice Class(es) 33:
Alcoholic beverages (excluding beers)

Against this registration, Red Bull, which distributes the energy drink of the same name, filed an opposition. Red Bull contended that "Fucking Red" infringes the trade marks "Red Bull" and "Red" registered for the Austrian group.

The Trade Mark Office dismissed the opposition on the grounds that the marks were not confusingly similar, whereupon the manufacturer of the energy drink filed an action before the BPatG.

Court decision

According to consistent media reports, Red Bull failed in its action against the proprietor of the trade mark "Fucking Red" (e.g. Markus Klohr in StuttgarterNachrichten.de with the title "Gericht stutzt Red Bull die Flügel").

The use of the mark "Fucking Red" for a red wine is not confusingly similar to that of the well-known energy drinks "Red Bull". The relevant public is able to distinguish between these marks without difficulty.

Furthermore, the trade mark "Red" registered for the Austrian group does not stand in the way of the registration of the trade mark "Fucking Red". The Federal Patent Court (DPatG) found that "Red" does not characterise the trade mark "Fucking Red" and therefore the likelihood of confusion alleged by Red Bull does not exist.

Conclusion

According to the report in StuttgarterNachrichten.de, the parties are said to have agreed on a settlement which permits the proprietor of the mark to use his trade mark "Fucking Red" for his red wine. Cheers then!