Here's a remarkable ruling of the Court of Appeal 's-Hertogenbosch in a pending case of Red Bull against Winters and Smart Drinks. Central issue: what is to be regarded as use of a trade mark or a similar sign? Smart Drinks asked Winters to fill cans with an energy drink. Smart Drinks provided the cans - preprinted with signs as Longhorn, Bullfighter, Live Wire and Pittbull - and the energy drink itself. Red Bull started summary proceedings against Winters, claiming that Winters infringed the Red Bull trade mark by filling up the cans with the energy drink. In first instance the claims of Red Bull were partially allowed. In a commentary it was said that the Presiding Judge commented that the only bull that was not available in his courtroom was bullshit.

In the appeal proceedings Winters argued that the claims of Red Bull should be denied because Winters had not used the alleged infringing signs. Therefore the preliminary question that the Court of Appeal had to answer was: is to fill up cans an activity that qualifies as use of a trade mark or a similar sign?

Article 2.20(2) of the Benelux Treaty on Intellectual Property defines what is to be regarded as use of a trade mark:

'For the application of paragraph 1 the following acts shall be regarded as use of a trade mark or a similar sign: (a) affixing the sign to the goods or to the packaging thereof; (b) offering the goods, putting them on the market or stocking them for these purposes under that sign, or offering or supplying services thereunder; (c) importing or exporting the goods under that sign; (d) using the sign on business papers and in advertising'.