Is Red Bull similar to Red Dragon — a question from Switzerland

What should be the level of similarity between two marks in order for the earlier to prevail in an opposition proceeding?

According to the Swiss Federal Administrative Court, even an indirect likelihood of similarity, under specific circumstances, could be sufficient for successful opposition.

The case concerns a trademark application for the word mark RED DRAGON filed in Switzerland by Reign Beverage Company for energy drinks and other non-alcoholic drinks.

Against this application, an opposition was filed by Red Bull based on the earlier famous mark RED BULL for registered and used for the same goods.

The Patent Office found the opposition well-grounded and successful which was confirmed by the Court too.

According to the Court, there is an indirect likelihood of confusion between the signs. Both marks consist of two words that are perfectly understood by consumers in the country. The first word is RED while the second is related to a wild, strong, and mythological animal.

The Court considered the RED BULL mark as famous even without explicit evidence. Due to the similar structure of the words in both signs including from a conceptual point of view, the Court found a mental association between the mark applied for and the well-known RED BULL in consumers’ minds. This could make consumers believe that there were economic connections between both owners, that is to say, that the latter mark was part of the family of the earlier marks or was approved or licensed by Red Bull company.

This conclusion is supported additionally by the low degree of consumer attention for purchasing energy and non-alcoholic drinks from one side, and the high level of reputation of the earlier mark.

Source: Walder Wyss Ltd — Sylvia Anthamatten and Katharina C. Röhl for Lexology.

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