CJEU Clips Red Bull's Wings

On 29 July 2019, the Court of Justice of the European Union (“CJEU”) rejected the appeal filed by Red Bull GmbH (“Red Bull”) against the judgment of the European General Court (“EGC”) of 30 November 2017, upholding the finding that the colour combination blue/silver as filed was not eligible for protection as a Community trade mark [CTM - now: European Union trade mark (EUTM)] (Case C-124/18 P). As background, in 2005 and 2011, respectively, two CTMs (now EUTMs) for the blue/silver colour combination for energy drinks in Class 32 were registered in the name of Red Bull on the basis of distinctive character acquired through use. The first mark's description read “Protection is claimed for the colours blue (RAL 5002) and silver (RAL 9006). The ratio of the colours is approximately 50%-50%.”, while the second mark included the description that “the two colours will be applied in equal proportion and juxtaposed to each other”. The applications for invalidity filed by Optimum Mark sp. z o.o. in 2011 and 2013, respectively, were upheld in all instances, which found that the marks at issue did not satisfy the requirements placed on representations of CTMs (now EUTMs) according to Articles 4 and 7(1)(a) of the former Community Trade Mark Regulation (CTMR). This finding has now been confirmed by the CJEU. In support of its appeal, Red Bull put forward the following five grounds, which were all rejected:

Breach of the principles of equal treatment and proportionality: According to Red Bull, the EGC had wrongly taken into account the “intrinsically less precise nature of colour per se marks”, their limited ability to convey some precise meaning and competition considerations, therefore reducing them to mere figurative, pattern or position marks in colour. The CJEU, however, considered that the EGC had correctly applied settled case law which required the systematic arrangement of a colour combination in order not to unduly restrict the availability of colours for other traders. Infringement of Articles 4 and 7(1)(a) CTMR: In this ground, Red Bull argued that the EGC had misinterpreted the judgment Heidelberger Bauchemie (Case C-49/02) by holding that marks consisting of a combination of colours must systematically specify the spatial arrangement of these colours and had therefore (1) infringed the rule that a mark must be viewed as filed, not having regard to the specific features of marks consisting of a combination of colours (which is not to have...