The Red Bull company filed a complaint against Hendrikus de Vries before the Rechtbank Amsterdam (Amsterdam District Court) , considering that the use of a sign could be misleading. The Red Bull company is the owner of the ‘Red Bull Krating‑Daeng’trademark for non-alcoholic drinks in the Benelux countries since 11 July 1983. Hendrikus de Vries registered the ‘ The Bulldog’trademark on 14 July 1983 and the ‘The Bulldog Energy Drink’trademark on 11 July 2000 in the Benelux countries. Furthermore, the national court declared as certain that Mr de Vries was using his trademarks for goods and services involving the sale of drinks. However, the unquestionability of Red Bull as a global brand marketing energy drinks was also affirmed, so that not just its original function but also its reputation is protected by trademark law., The Hoge Raad der Nederlanden (Supreme Court) thus requested a preliminary ruling from the CJEU, asking how the EU Trademark Directive (89/104) should be interpreted. More precisely, the national court asked if a “due cause” (i.e. appropriate justification of some behaviour) could be found in the situation whereby the “Bulldog” sign was already being used in good faith by Mr de Vries before the “Red Bull” trademark was filed.
Argumentation of the CJEU
In its preliminary ruling, the CJEU stated that the concept of “due cause” must be interpreted in a way taking into account all functions of a trademark, including also those of communication, investment or advertising. However, it added that the purpose of trademark protection is to strike a balance between the interests of the trademark proprietor and the interests of other economic operators. In other words, the CJEU highlighted the protection of free competition in trademark law. In conclusion, it held that “due cause” must be interpreted subjectively and – in consequence – as one of the limitations of brand protection . This means that when Mr de Vries uses a bulldog sign for hotels and drinks and owns a trademark for this sign, he can also use it for energy drinks under three conditions. First of all, the sign and its reputation must have been accepted by the relevant public. Secondly, the degree of proximity between his and Red Bull goods must not be too high. Finally, the economic and commercial influence of such use from the point of view of Red Bull’s products must not be too significant. It is now for the national court to apply these criteria.
European Parliamentary Research Service of the European Parliament. The EPRS offers the best available research and analytical support to Members of the European Parliament, their staff, parliamentary committees and, of course, to you!
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