U.B.Natural Pty Ltd v Red Bull GmbH

This matter concerned an opposition by Red Bull GmbH to the registration of a trade mark application by U.B. Natural Pty Ltd. The application sought to register the word "RED" as a trade mark for goods in class 32, which primarily includes non-alcoholic beverages. Red Bull GmbH, the opponent, argued that the proposed mark was likely to deceive or cause confusion, given its extensive use and reputation in Australia and globally for its energy drink under the well-known RED BULL trade mark.

The primary legal issue before the Hearing Officer was whether the registration of the trade mark "RED" for non-alcoholic beverages should be refused on the grounds that it was likely to deceive or cause confusion, pursuant to section 55 of the *Trade Marks Act 1995* (Cth). This involved assessing the distinctiveness of the word "RED" as a trade mark in the context of beverages and considering the extent of the opponent's established rights and reputation in its RED BULL trade mark.

The Hearing Officer reasoned that the word "RED" is commonly used and desired in relation to non-alcoholic beverages, and granting a monopoly in this word would have undesirable consequences for other traders in the market. While acknowledging the significant global reputation and extensive use of the RED BULL trade mark in Australia, the Hearing Officer found that the opponent had not established that the use of the single word "RED" by the applicant would be likely to deceive or cause confusion with the opponent's mark. However, the Hearing Officer ultimately refused to register the trade mark application.

The Hearing Officer ordered that trade mark application 1156737 be refused. Costs were awarded against the applicant in favour of the opponent, to be assessed according to the official scale.