Opposition by Red Bull GmbH to registration of trade mark application number 2344669 (class 32) -

Red Bull GmbH opposed the registration of trade mark application number 2344669 in class 32, which sought to register the mark "RED BULL" for alcoholic beverages. The opposition was brought before Timothy Brown, acting as the delegate of the Registrar of Trade Marks. The core of the dispute concerned whether the applicant's proposed use of the mark for alcoholic beverages would be likely to deceive or cause confusion with Red Bull GmbH's well-known trade mark "RED BULL" used for non-alcoholic energy drinks.

The delegate was required to determine whether the applicant's mark was substantially identical with or deceptively similar to Red Bull GmbH's registered trade mark. This involved assessing the degree of visual, phonetic, and conceptual similarity between the marks, as well as considering the respective goods and the trading public. A key consideration was the extent to which Red Bull GmbH's mark had acquired a reputation in the marketplace for non-alcoholic beverages and whether this reputation would extend to alcoholic beverages, thereby creating a likelihood of deception or confusion.

In reaching his decision, the delegate applied the established principles for assessing deceptive similarity under the *Trade Marks Act 1995* (Cth). He found that the marks were identical. Crucially, the delegate considered the significant reputation and distinctiveness of Red Bull GmbH's mark in relation to its energy drinks. He concluded that the trading public, encountering the applicant's mark on alcoholic beverages, would likely assume a connection or sponsorship between the applicant's goods and Red Bull GmbH, given the identical nature of the marks and the potential for brand extension into related product categories. This likelihood of deception or confusion was sufficient to uphold the opposition.

The delegate ordered that the trade mark application number 2344669 be refused registration.