RED BULL GMBH v / CHIC BOISSONS
TGI (Tribunal de Grande Instance / High Court) Paris April 13, 2012 :
- Parties : RED BULL GMBH v / CHIC BOISSONS
- Subject Matter : Use of the trade mark of a third party - Comparative Advertising
- Trade Mark : RED BULL
RED BULL is the holder of the registered community trade mark RED BULL for energy drinks included in class 32.
CHIC BOISSONS specialises in the wholesale trade of beverages, and produces and markets sports (energy) drinks under the brand name ENERGETIK.
RED BULL accused this company of having infringed its Community trade mark RED BULL by offering for sale, via its website, a drink in respect of which the company states that "the taste is the equivalent of other European brands (SHARK, RED BULL, etc) ". RED BULL brought action against it for infringement before the TGI Paris.
CHIC BOISSONS argued that it made use of the mark RED BULL by way of information only, for the sole purpose of better conveying the great taste of its drink, and that other brand names were also similarly referenced.
In its judgment of April 13, 2012, and acting in the capacity of Community Trade Marks Judge, the Court held that " Although Article 12 of the Regulation on the Community trade mark states that a Community trade mark shall not entitle the proprietor to prohibit a third party from using it in the course of trade, indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of the goods or of rendering of the service, or other characteristics of the goods or service; where it is necessary to indicate the intended purpose of a product or service, the contested use does not fall within these exceptions“.
The Court added that "The reproduction of the word mark RED BULL by CHIC BOISSONS within the context of the commercial promotion of its product [...] to communicate to the public the taste related qualities of its drink was not necessary, since it could have informed the public thereof without making any reference to the brand name, by simply mentioning that the drink had a " candy flavoured taste " " and that " The company CHIC BOISSONS, by mentioning the brand name RED BULL, had sought to benefit from the attractive nature of the latter to promote its products ".
As a consequence thereof the Court upheld the charge of infringement against the company CHIC BOISSONS.