Plaintiff: Red Bull GmbH
Defendant: PGL GmbH & Co. KG
Case no.: R0151/2022-1
Jurisdiction: European Union
Industry: Food and Drink
Decision date: 13 Feb, 2023
The BoA endorses the Opposition Decision’s finding that the conflicting marks are not confusingly similar within the meaning of Article 8(1)(b) EUTMR, even for identical goods and services. The relevant public, including the public paying an average level of attentiveness, will be able to differentiate the signs despite of some similarities. The differences prevails on the dissimilarities. The outcome would be the same even admitting that the earlier marks enjoy reputation. Indeed, the reputation of these marks would be limited to goods and services for which no similarity has been found with respect to the applicant goods. Furthermore, the BoA finds that the evidence filed for the first time in the appeal proceedings along with the documents already provided suffice to establish a reputation of the earlier Austrian mark for ‘energy drinks’ and ‘sporting and cultural activities’. The said reputation is sufficiently high to find that the use of the contested mark in relation to part of the contested goods may take an unfair advantage. The degree of similarity between the signs is sufficient in order to apply Article 8(5) EUTMR.
RED BULL
