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Red Bull trade mark ruling: Sally Britton comments

Posted on 31 July 2019

The Court of Justice of the European Union (CJEU) has delivered its decision on whether Red Bull can protect the combination of the colours blue and silver as a trade mark. 

Commenting on the decision, Mishcon de Reya IP Partner and Head of the firm's Brands Group, Sally Britton, said:  

"Unlike other recent cases (such as the KitKat decision), this case is not about whether the combination of colours is sufficiently distinctive to operate as a trade mark for energy drinks. Indeed, it had already been accepted that the Red Bull colour combination was distinctive as a result of the use that Red Bull had made of it. The focus is on whether the mark is sufficiently clear and precise to operate as a trade mark at all, and the CJEU (Court of Justice of the European Union) has upheld the EU General Court's decision that it is not. To protect such marks, there needs to be a systematic arrangement of the colour combination in a predetermined and uniform way. Careful consideration must also be given to any description provided by the trade mark applicant to ensure that it clarifies the scope of protection it seeks. The CJEU agreed here that the juxtaposition of two colours, as set out in Red Bull's mark, would allow numerous different combinations and was therefore not precise enough to be registered as a mark.

"The CJEU's decision confirms a high bar for the protection of colour combination marks, which often form an important feature of packaging, despite colour being explicitly listed in trade mark legislation as something capable of protection by a registered trade mark. The outcome may see it become more difficult to register a colour combination as opposed to a colour on its own, although single colour marks are also not straightforward. Businesses seeking to protect colour combinations will need to carefully consider how they describe the colour combination and how it will be applied."

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