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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
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Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
Round 2 in a Dutch Red Bullfight

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'.
The Court of Appeal disagreed with Red Bull that the activities of Winters should be regarded as 'affixing the sign to the packaging'. However, that Court followed Red Bull's second-best argument, that filling the cans with the energy drink is 'affixing the sign to the goods'. According to the Court of Appeal in this specific case the only way to affix the sign to the goods is to fill the can with the energy drink. This activity was carried out by Winters and Winters therefore made use of the signs Longhorn, Bullfighter, Live Wire and Pittbull as a trade mark.

In the end the Court of Appeal came to the conclusion that the Bullfighter, Pitbull and Live Wire cans infringed the Red Bull trade mark. Long Horn was not eliminated yet.

Posted by: Gino Van Roeyen @ 08.35
Tags: Benelux trade marks,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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