Red Bull GmbH v. Incorporated Beverages (Jersey) Limited

The earlier mark ‘RED BULL has achieved enhanced distinctiveness through substantial use in the EU, especially Germany and Austria, but this relates, however, to energy drinks. Nevertheless, it is clear that energy drinks are used as mixers with alcoholic beverages and are complementary and therefore similar to certain alcoholic beverages. The dominant and distinctive element of the CTMA will be the term ‘RED. The visual comparison of the marks ‘RED and ‘RED SHOT will reveal a high degree of similarity. The second word ‘SHOT is in the secondary position and is descriptive. Given the dominant character of the element ‘RED, the signs are visual similar. Similar considerations apply to the phonetic comparison and they are therefore phonetically similar. Conceptually, RED and RED SHOT are also similar. The enhanced distinctiveness of RED BULL for energy drinks could well lead consumers to believe, when confronted with the mark RED SHOT, that they were being offered RED BULL with a shot of alcohol in it. Considering that the element common to the compared signs (‘RED) is the dominant and distinctive component of the mark applied for, that the goods are identical, that the consumers attention will not be particularly high, that the signs are similar from a visual, oral and conceptual perspective and that it is appropriate to apply the principles of interdependence and imperfect recollection in the present case, the Board finds that there is a likelihood of confusion between the marks ‘RED and ‘RED SHOT. The appeal is allowed.