Red Bull GMBH, the Australian-based energy drink that is known for “giving you wings,” has swatted down its competition on the basis of trademark infringement. The product in question was from Middlesex’s Sun Mark, which made and marketed an energy drink called Bullet, which used the slogan “no bull in this can.”
Red Bull is unquestionably one of the most easily identifiable and recognisable brands of energy drinks, spawning dozens of competitors that, while not ‘copying’ their can design, have made their drinks match Red Bull’s in size or shape. This tactic is common in markets that have one dominant product, as they become the benchmark with which consumers compare similar products. Eventually, there are dozens of rivals competing to show consumers that their product offers a unique experience while also designing their products to replicate the same kind of experience that has already proven successful.
‘Clear likelihood of confusion’
However, it was not the size or shape of the Bullet energy drink that Red Bull claimed was a clear case of trademark infringement. The Australian energy drink makers launched an action against the use of the word ‘Bullet,’ pointing out that they had previously launched a drink under the name Bullit and own the trademark to this name.
Sun Mark, which owns Bullet, , manufactures a host of other food products and distributes food products from other companies such as Unilever, Nestle and Mars with its co-defendant, Sea Air and Land Forwarding. The two companies disputed Red Bull’s trademark infringement claims, but were struck down by a High Court Judge. Mr Justice Arnold said that Sun Mark’s use of the Bullet mark brings about a “clear likelihood of confusion” with the Bullit mark already under ownership by Red Bull GMBH.
Red Bull also took action against the slogan “no bull in this can,” which they argued clearly signified, in consumers’ minds, trade mark Red Bull and attempted to profit from their goodwill. The Bullet drink itself is marketed as an “energy drink with taurine,” which is a key factor in Redbull’s marketing, as well as claiming that the drink improved reaction times and increased concentration.
Mr Justice Arnold also sided with Red Bull in this dispute, saying that the use of “no bull” in a slogan for an energy drink is not fair use. The slogan takes “unfair advantage of the repute of Red Bull,” the High Court ruled.
Despite Sun Mark founder Raminder Ranger’s claims that Red Bull GMBH has used “bully-boy tactics,” they will need to prepare for an injunction that will appear in several weeks. There is not yet a determined date for when Bullet must be pulled off store shelves.