Bull Fight in the Intellectual Property Court

In a dispute between Red Bull GmbH and the applicant of the Portuguese mark BULLS, the Portuguese Intellectual Property Court revoked the Trademark Office granting decision considering that the mark is confusingly similar to the well-known energetic beverage brand Red Bull (Case 196/21.8YHLSB, published on 6-Jul-2022). The Court acknowledged the reputation of the prior marks.

The facts

The Portuguese trademark application for GTZ BULLS ESPORTS, a word and device mark, intended for goods and services in classes 25 and 41, was opposed by Red Bull GmbH on the grounds of likelihood of confusion with its earlier European Union Trademarks Red Bull in word or figurative signs.

Prior marks	Applied mark: GTZ BULLS ESPORTS

The Portuguese Industrial Property Office (INPI) dismissed the opposition and granted the registration of the applied mark GTZ BULLS ESPORTS (figurative). INPI considered that, in spite of some similarities with the earlier Red Bull registrations and their reputation, the similarities were not in sufficient degree as to create a risk of confusion for average consumers in Portugal. The opponent appealed.

Intellectual Property Court’s judgement

The appellant claimed that the prior marks had gained a reputation at the European Union level but also there was a blatant similarity between the marks with the word BULLS being dominant and the design depicting, in both cases, a bull in “aggressive mood”.

The IP Court agreed and held that not only the products/services of the marks under comparison were identical but also that the marks should be deemed highly similar due to the fact that the bull is a fantasy element without any direct relation with the products/services. The judge added that, even if the figurative elements are different, they represent one bull (or 2 bulls) and the additional word elements found in the applied mark (GTZ, ESPORTS), are almost imperceptible and overshadowed by the large lettering of BULLS and the bull design. The court pointed out the need to make an overall assessment and that a sum of small similarities may create a larger risk of confusion. Additionally the Court held that the reputation of the RED BULL trademarks was undeniable from the evidence submitted that showed that Red Bull was a market leader in the energy drinks sector, won several prizes and had vast years of recognition by the public. The Court held that the high similarity of the marks would, in the public’s eye, establish a connection with the well-known RED BULL marks and could damage the reputation of the prior marks “namely in terms of dilution and weakening of their distinctive force”.

The applicant appealed to the Lisbon Court of Appeals (CoA). The CoA confirmed the 1st Instance decision holding, that, in a global impression, the similarities between the marks are more significant than the existing differences. The CoA further considered that the requirements of national and global reputation were established, thus, fully supporting all the 1st Instance conclusions.

Leonor Silveira