Red Bull GmbH v. The Redbush Tea Company Limited

A large volume of evidence has been adduced to substantiate the claim that the mark ‘RED BULL enjoys a reputation in the Community such that it has an enhanced level of distinctiveness. The sales figures are impressive. There is a vast media and advertising exposure in the Community and a high degree of public recognition in surveys conducted. The opponents mark is sufficiently well-known and enjoys a higher level of protection. The common element of both marks is the word 'RED' and the letters 'BU'. The central word element 'Redbush' is the most eye-catching feature of the CTMA. The figurative elements are merely decorative and may even be descriptive of certain beverages that are covered by the mark. The other word elements, written in smaller script, are not so noticeable to the consumer. The visual similarities outweigh their dissimilarities. The same remarks made to the visual comparison apply to the phonetic comparison. Regarding the conceptual comparison, there is some overlap between the pars in the shared term 'RED' (even if that word is somewhat allusive of the colour of certain of the products). Given the identical nature of the goods, and the enhanced distinctiveness of the earlier mark, the overlap between the sign ‘RED BULL and the eye-catching or dominant part of the mark ‘Redbush from a visual, phonetic and (to a lesser extent) conceptual point of view means that a consumer (in the non-English-speaking part of the Community) could be led to believe that there was an economic connection between the two marks and thus be confused as to their commercial origin. The appeal is dismissed.