applies for a number of trade marks, specifying goods and
services in five classes. Company B writes a letter to Company
A. The contents are not entirely clear, but it is most likely
flagging up its own rights in a similar mark for some of those
goods/services, ahead of possibly filing an opposition. After
considering the request, Company A amends its applications and
the companies sign a coexistence agreement.
This happens around the world every day in trade mark land,
without any fuss.
Except it’s August. There’s not
much news around and, for many people, not too much work to do.
And when Company A is a local brewery with just eight staff and
Company B is a multinational corporation also associated with
high-profile sports teams and events, a few people pay
attention. The BBC gets hold of extracts from the letter, and
article becomes one of the top 10 on its homepage. The
Daily Mail website receives hundreds of outraged comments.
It is reported that Company B wants to put Company A out of
business, and is seeking to monopolise a common word. Twitter
Insults are hurled. Boycotts are threatened.
Company A (Redwell Brewery) is happy to speak to the media
and comment on twitter, but Company B (Red Bull – or
RedBully as some called it) says nothing. Finally, late in the
afternoon, it puts out a
terse statement saying it is "willing to allow" Company A
to maintain its mark so long as it does not use it for energy
The two parties have now apparently resolved
the dispute, which presumably concerned two trade mark
applications Redwell had made at the UK IPO (numbers 3007392
- a series of six) covering goods and services in classes 16,
32, 33, 40 and 41. Notably, the specified goods in class 32
included "mineral and aerated waters" and "non-alcoholic
But in the meantime
Red Bull lost a lot of goodwill, which is a pity. We all know
that such brands take years to build up and, sadly, there are
counterfeiters and scammers who try to take advantage of them
and their customers. Red Bull has always taken a
robust position against fakes and frauds, and is probably
stronger for it. It looks like it made a misjudgement in this
case, though. So what lessons can be learned?
Here are three. First, when writing a letter ahead of legal
action to an unfamiliar party, don’t assume it
will remain confidential; ask yourself: would I be happy for
this to go viral? Second, particularly when dealing with small
companies, think about the potential repercussions and consider
alternative approaches. Even if you decide to go the C&D
route, sometimes the
polite or gentle approach may be more effective than an
aggressive stance. Third, when the backlash starts, be
prepared to stand up, clarify your position, engage with
critics and if appropriate, admit mistakes. That may be hard,
and may be contrary to what lawyers are used to doing, but the
alternative is going to be far worse.
Red Bull photo by Arne Müseler