On November 30, 2017, the Luxembourg judges of the General Court of the European Union (EGC) ruled that the color combination blue-silver of Red Bull does not enjoy trademark protection (Ref.: T 101/15 and T 102/15).
This is unlikely to have caused a celebratory mood at the company’s Salzburg headquarters. For years, the company has been trying to defend its trademark rights and market its company in the extreme sports sector in particular. The reason for the EGC’s decision lies in the fault of the company itself.
Red Bull applies for “blue-silver” as a color trademark
Red-Bull had not described the colors “blue” and “silver” precisely enough when registering the color marks with the European Union Intellectual Property Office (EUIPO) in 2005 and 2011. In the opinion of the Luxembourg judges and the clerks at the EUIPO, a precise description of the trademark was therefore not given and the existing registrations should be canceled.
The decision only came about because a courageous Polish company “Optimum Mark” had already taken action against the imprecise registration at the EUIPO in 2011 and 2013 and applied to cancel the color mark for Red Bull.
EGC follows the explanations of the EUIPO
In its decision, the EGC agreed with the EUIPO’s reasoning. The color mark based on “blue-silver” was too imprecise and allowed a wide variety of combinations (e.g. geometric shapes or product designs) of the two individual colors. This would lead to too extensive use with different overall impressions.
To date, the ECJ has assumed that a multi-color mark is fundamentally capable of being a trademark. In connection with Heidelberger Bauchemie, it recognized the combination of two colors as a sign in the legal sense for the first time. However, only if it is established that these colors or color combinations actually constitute a sign and the application contains a systematic arrangement. Only then could the previously defined and consistently linked multi-colored mark enjoy its own protection under trademark law.
“About %-50%” too imprecise – Red Bull loses its color brand
In the case of Red-Bull, the trademark application only commented on the relationship of the colors and the systematic arrangement with the words “approximately %-50%” and “juxtaposed”. In the opinion of the judges, such an imprecise description allowed for too extensive an appearance and classification of the colors. With such an application, Red-Bull would have been able to claim all shapes in which blue and silver are juxtaposed in a ratio of 50% to 50%. This would almost be a monopolization of the colors blue and silver under trademark law.
Caution when applying for a trademark
The decision will have a major impact on new color trademark applications in the future. All companies are therefore advised to adhere to the exact wording of the EU regulations. This is because the exact specification of the color coding is mandatory. The ratio and combination of the colors – if the trademark is to include several colors – should also be specified in order to avoid making the same mistake as Red Bull.