New Red Bull Case Causes Headwind for Colour Combination Trademark Applications

Author: Charlotta Bonsdorff

On 30 November 2017, the EU General Court rendered a decision in which Red Bull’s two trademarks consisting of the juxtaposition of the colours silver and blue were not considered precise or uniform enough to be trademarks. The decision has caused some disappointed comments from IP lawyers.

As background for the General Court’s decision, Red Bull filed the application for the first of the two contested trademarks in 2002. The applied mark consisted of a combination of the colours silver and blue, both of which constituted approximately 50% of the mark. A second trademark application was filed in 2010 for a mark described as follows: “the two colours will be applied in equal proportion and juxtaposed to each other”. Both marks were registered based on their acquired distinctiveness.

Optimum Mark challenged the two trademarks by arguing that the marks had not acquired distinctiveness. The Cancellation Division of EUIPO considered the claim by Optimum Mark in 2013. They found that the trademarks constituted the “the mere juxtaposition of two or more colours, designated in the abstract and without contours”. In addition, it was considered that Red Bull’s trademarks allowed for a number of different colour combinations. Thus, the Cancellation Division considered the contested marks invalid. The decision was appealed, but the First Board of Appeal of EUIPO upheld the Cancellation Division’s decision.

It was then appealed to the General Court, and the court took the decision to uphold the previous decisions. It stated that the marks were lacking distinctive character and repeated the outlook of the Cancellation Division by considering that a trademark consisting of the mere juxtaposition of two colours, without a systematic arrangement, is not sufficiently precise and uniform to be valid. The General Court backed its decision by stating that for colours or colour combinations to be considered a trademark, they must be a sign capable of being graphically represented and capable of distinguishing the goods and services of one undertaking from those of other undertakings.

The registration of colours or colour combinations as trademarks in the EUIPO has already been considered difficult. The effect of the decision on the examination of colour or colour combinations will be seen in due course, but worries of EUIPO further tightening its strict approach to the registration of said trademarks have been raised. One would also have hoped that the court’s decision provided a perspective to what would be considered sufficient in the described situation to help brand owners register colour or colour combination marks in the future.