Colour trademark Red Bull invalid

Colours can be trademarks. For many, the colour combination of blue and silver, is sufficient to recognize the Red Bull energy drink. In order to protect this colour combination, Red Bull has filed two trademarks, consisting of a survey with the two colours, accompanied with a description. The question here is, if these filing are sufficiently clear to meet the legal requirements.

The European Court stated in 2004 that colours can be trademarks, as long it is objectively clear enough, how they are being used. A vague description saying that, “the ratio of the colours is approximately 50% 50%” , is too broad, like the description “the two colours will be applied in equal proportion and juxtaposed to each other” (the descriptions of the two filings). For this reason these colour trademarks of Red Bull are declared invalid. But not all is lost. Red Bull also owns another registration showing the colour combination as actually used. In our opinion, this trademark is valid, although an invalidation action has been initiated against this trademark as well. Claiming colours is possible, as long as the claim is sufficiently specific (Images; source EUIPO databases).

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?