February 23, 2015

Red Bull’s Opposition Might Not Have Wings

It looks like Red Bull GmbH, the maker of the Red Bull energy drink, may have decided to throw its hat into the (bull) ring as a trademark bully.

You are likely aware of Red Bull's main product: an "energy drink" sold in little blue-and-silver cans, whose advertisements claim that it will give you wings. According to Wikipedia, the creator of Red Bull was "inspired" by a Thai drink, whose Thai name Krating Daeng means roughly "red bovine." The ingredients of the Thai drink were modified "to suit the tastes of westerners." From what I understand, opinions differ on whether Red Bull successfully formulated a drink that would suit anyone's tastes, but it is no doubt true that the product has been a huge success and is very well known. Red Bull's can looks like this:

Red Bull

A brewery in Ashburn, Virginia called the Old Ox Brewery filed an application to register the "Old Ox Brewery" trademark for beer. Its website says the brewery is named after Old Ox Road in their home of Loudoun County, Virginia. Here is a photo of some of their wares, taken from their website at http://oldoxbrewery.com/:

Old Ox

After an application to register a trademark is filed, the Patent and Trademark Office looks it over to see if there is any reason why it cannot be registered. One of the common reasons for the PTO to refuse to register a mark is that it is likely to cause confusion with a mark that is either already registered or for which there is an earlier application to register. Old Ox Brewery's application seems to have passed that hurdle without incident.

After an application gets preliminary approval from the PTO, it is published for opposition. Anyone who thinks they would be injured by the registration has the opportunity to oppose registration. To do this, the opposer files a Notice of Opposition that sets out the basis for the claim that the mark should not be registered. Unless the applicant withdraws the application, the opposer will eventually have to submit evidence to convince an administrative board at the PTO that indeed the mark should not be registered. A common reason for opposition is that the opposer thinks that the two marks, used with the goods or services shown in the application, are likely to confuse the public.

This is where Red Bull comes in. It has opposed registration of "Old Ox Brewery" for beer based on its prior rights in "Red Bull" for beverages, energy drinks, sports drinks, clothing, and various other products (notably not including beer).

Typically the most important issues in an opposition are the similarity of the marks and the similarity of the goods or services. The Board looks at the similarity of the marks in terms of their "sight, sound, and meaning." Now I don't want to prejudge anything, but it seems pretty clear that "Old Ox Brewery" neither looks nor sounds like "Red Bull," so it's evident that Red Bull is basing its claim on the similarity of meaning.

Red Bull helpfully points out in its Notice of Opposition that an ox and a bull are both "bovine" animals "and are virtually indistinguishable to most consumers. In addition, an ox is a castrated bull."

I will give Red Bull credit for the educational value of its Notice, because I was not aware that an ox is a castrated bull. I guess it proves I'm just a city boy. Still, I'm not seeing it.

Red Bull also points out that it owns some logo marks depicting either two bulls charging at each other or a single charging bull. It also alleges in a roundabout way that beer and soft drinks are related. Based on the above, Red Bull claims that people would be confused between the two and asks that the Old Ox marks not be registered.

Old Ox is not taking this lying down. It has responded the way little guys respond to big guys trying to push them around: by publishing an open letter to Red Bull on its website. Old Ox admits that Red Bull seems pretty cool, what with its extreme-ness and all, but thinks Red Bull is overstepping. It even supposes that the folks at Red Bull might be "strapping yourself into a Formula One racecar that is about to be lit on fire and jumped over a large chasm of some sort" - which I will interpret as a suggestion that Red Bull might take a flying leap. As an olive branch, Old Ox offers to agree never to produce an energy drink. Still, no indication of progress in resolving the matter so far.

Over the years, there has been concern about trademark bullies, who are perhaps cousins of the much-reviled patent trolls. A trademark bully is generally a big company that files oppositions where it is a real stretch to think that it could show a likelihood of confusion, but where it might be able to get the applicant to either abandon its application or otherwise submit to unreasonable demands just to save the time and expense of an opposition proceeding.

It seems like Red Bull might be starting to make a name for itself as a trademark bully. And that does not give you wings.

On a lighter note, here is a video showing the mayhem of Red Bull's "flugtag" competition, in which participants launch home-made, human-powered "flying machines" off a platform and into a body of water. Most are more aptly described as "crashing machines," since they just roll off the end of the platform and straight into the water, much as a bowling ball would. If you stick around to almost the end, though, you'll see a rather impressive flight.


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