Sunday, 25 August 2013

Revised and updated: Red Bull no longer pursues Redwell brewery in Norwich over name

A few days ago, BBC News  reported that a Norwich microbrewery was being threatened with a trade mark infringement action by Red Bull, who in my experience (acting for an applicant who faced an opposition from them) are among the most egregious trade mark bullies in the world. However, a few days later The Independent reported that Red Bull had backed down, and it is worth looking at the story for what they had to say about the matter. Good.
It is therefore right that I should delete all the critical things I said about Red Bull (except those that are historical fact, mentioned above). It does not change my view of the trade mark system ...
The trade mark system was designed to allow people to use similar, even identical, trade marks for different goods. The less inherently distinctive a trade mark is, the less different the goods should have to be. The degree of naming freedom depends on the distinctiveness of the mark and the degree of similarity of the goods. A trade mark system that grants exclusive rights over an ordinary adjective that, as far as I know, is not used as a trade mark other than with a specific noun, is a broken trade mark system - but we already knew the CTM system is pretty badly broken, and through trying to keep up with it so is the UK one. Red Bull rely heavily on the trade mark system - so they need to learn to treat it with respect, and not behave as if a registered trade mark gave them exclusive rights to parts of the language.

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