International report - Bull fight finally yields a victor 05 Apr 17
NLO - Netherlands
After 14 years, the protracted legal fight between coffee shop The Bulldog and energy drink brand Red Bull is over, with The Bulldog coming out on top. But what can be learned from this case?
Founded in 1975, The Bulldog is a well-known coffee shop, not just for Dutch residents but also for large numbers of tourists and celebrities. As well as cannabis, the coffee shop sells tobacco products, clothing and souvenirs under the name The Bulldog. There is also a hotel and bike rental under this name. However this changed when, many years after the establishment of The Bulldog, a new phenomenon was introduced in the Netherlands: energy drinks.
Emergence of energy drinks
In 1997 Red Bull launched its now popular energy drink on the Dutch market. Soon more companies started selling energy drinks, including The Bulldog. Red Bull objected, and in 2003 issued a demand for the company to stop doing so. Red Bull felt that this constituted trademark infringement. According to the company, the similarity between the two names was confusing and The Bulldog would benefit unfairly from Red Bull’s widespread reputation. This marked the start of a long drawn-out 'bull fight'.
Too many similarities?
Are brands whose names include the word 'bull' automatically similar? Or are the differences between both brands clear? The Bulldog’s logo shows a dog and is portrayed on the coffee shop’s energy drink cans. Red Bull uses a bull in its logo, an animal which bears little resemblance to a dog. In addition, many people know the meaning of the English word 'bull'. Further, The Bulldog’s name and fame dates back to 1975 and the brand was registered for non-alcoholic drinks in 1983 – long before anyone had heard of Red Bull and energy drinks.
Different rulings by Dutch courts
Initially the court rejected Red Bull’s claim. According to the judge, there were too few similarities between the two brands. Red Bull appealed, and three years later the court accepted its claim. The court felt that there was the possibility of confusion among the public because both brands included the word 'bull'. Statements by The Bulldog played a major role. According to the court, these suggested that the company wished to benefit from the prestige of Red Bull. This time it was The Bulldog which disagreed with the ruling, and the case went before the Supreme Court.
Valid reasons as possible justification
One question that arose was whether the fact that The Bulldog already had a considerable reputation played a role. When people hear the name, many immediately think of the coffee shop, particularly in combination with the distinctive logo. Further, The Bulldog is a catering establishment which applies its brand name to a wide variety of products. Thus, introducing energy drinks seemed a logical way to expand its product range. Might The Bulldog therefore have valid reasons for using its brand name for the new product? The Supreme Court decided to obtain clarification from the European Court of Justice (ECJ), asking the following question: can there be valid reasons when a company introduces a new product on the market under a name which is already familiar from other activities?
The ECJ assessed the Supreme Court’s question in a general sense. According to the ECJ, there may be valid reasons in the situation outlined by the Supreme Court. Whether this is actually the case depends on:
- the brand’s reputation;
- the extent to which the new product is linked to products or services which have an existing reputation; and
- the relevance of the brand use for the product.
The ECJ's explanation is important for many companies, as it is obviously a major advantage to market a new product under an existing, strong brand name.
Final ruling: bulls and dogs are unrelated breeds
Armed with the ECJ's explanation, the Dutch court needed to settle the bull fight. Thus, on March 14 2017 the court ruled that The Bulldog had not violated Red Bull's trademark rights. The word 'bull' may appear in both names, but the court felt there was no danger of confusion. Its decision was based on the design differences between both logos and the conceptual differences between a bull and a dog. This brought to an end the 14-year legal dispute – a fight that clearly demonstrated that one bull is not necessarily the same as another.
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