Red Bull GmbH v Reschke Pty Ltd

Red Bull GmbH (the opponent) opposed the trade mark application by Reschke Pty Ltd (the applicant) for the mark "RED BULL" in relation to alcoholic beverages. The opposition was heard by Claudia Murray, a delegate of the Registrar of Trade Marks, in Canberra on 11 December 2003. The opponent, a global producer of energy drinks, asserted its extensive use and reputation in the "RED BULL" trade mark, which it had used since 1982 and registered in numerous countries, including Australia. Evidence was presented regarding the nature of energy drinks, the history of the opponent's trade mark use, and the specific marketing and sales of "RED BULL" products in Australia, including their sale in 250ml cans and as a component of a cocktail.

The primary legal issues before the delegate were whether the applicant's trade mark was substantially identical or deceptively similar to the opponent's registered "RED BULL" trade marks, pursuant to section 44 of the *Trade Marks Act 1995* (Cth), and whether the applicant's mark was likely to be confused with the opponent's mark due to its reputation, under section 60 of the Act. The delegate was required to determine if the threshold test for substantial identity or deceptive similarity was met, which would then inform the assessment of the section 60 ground.

The delegate found that the trade marks were neither substantially identical nor deceptively similar, failing the threshold test under section 44. Consequently, the opponent could not establish its case under section 60, as this ground also relied on a finding of substantial identity or deceptive similarity. The delegate concluded that the opponent had not succeeded on any of the grounds pursued and, lacking a basis to be satisfied on other grounds raised in the notice of opposition, found them also to be unsuccessful.

The applicant's trade mark application, number 809023, was permitted to proceed to registration one month from the date of the decision, unless an appeal was filed. The applicant, having been successful, was awarded its costs against the opponent, to be taxed on the Official Scale.