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Battle of the energy drinks in General Court: how similar are bulls and bulldogs?

In Case T-78/13, Red Bull GmBH filed an opposition on the basis of earlier marks BULL and RED  BULL registered for various goods in Classes 32 and 33 against the CTM application filed by SunMark Ltd for the sign BULLDOG for the same classes.

The Opposition Division had upheld the opposition in its entirety, which the Second Board of Appeal annulled: as regards the comparison with the earlier word marks BULL, the signs at issue had a fairly low degree of visual and phonetic similarities and were conceptually different, and as regards the comparison with the earlier word marks RED BULL, they had a low degree of visual and phonetic similarity and were conceptually different. Thus, the signs could not be regarded as similar overall because of their significant conceptual differences and, consequently, there was no likelihood of confusion for the purposes of Article 8(1)(b) of CTMR.

 The General Court annulled the decision of the Board of Appeal: regarding the comparison of the signs at issue, contrary to what the BoA held, they have an average visual and phonetic similarity. Further no conceptual comparison is possible for the majority of the relevant non-English-speaking public. However for the English-speaking part of the relevant public, there is a low degree of conceptual similarity: both the bull, depicted by the earlier word marks, and the bulldog, described by the mark applied for, convey the image of animals from which a concentrated force emanates, a great muscular force often expressing itself aggressively towards their fellow creatures or human beings, especially when that power is on display in combat or at bullfights.

In the overall assessment of the likelihood of confusion, the Board had failed to take into account the fact that the products at issue were completely identical. Given the overall resemblance of the signs at issue, it must be held that the likelihood of confusion between the marks at issue has been proved.

Posted by: Laetitia Lagarde @ 16.39
Tags: general court, likelihood of confusion, Red Bull, bull dog, energy drinks,
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