No European wings for Flügel

static1.squarespace.comMaybe not quite a sophisticated drink during a trademark conference, but still, you might know Flügel, a small shot with a big party (quoting the slogan of the product).

Red Bull has problems with the European trademark Flügel. But why? Well, in German-speaking countries Red Bull uses the slogan Red Bull Verleiht flügel (similar to the slogan “gives you wings”). Red Bull fears confusion and files a declaration of invalidity based on their Austrian trademarks against the European trademark Flügel. An interesting detail is that the Flügel mark was registered for 13 years! Can Red Bull object this trademark after so many years?
That was the main defense of Asolo, the owner of trademark Flügel. They asserted that Red Bull has acquiesced the Flügel trademark. The Board of Appeal (in first instance Red Bull won the case) states that four conditions must be satisfied for acquiescence of a later trademark which is identical with the earlier trademark or confusingly similar. “First, the later trademark must be registered. Second, the application for its registration must have been made by its proprietor in good faith. Third, the later trademark must be used in the Member State where the earlier trademark is protected. Fourth, the proprietor of the earlier trademark must be aware of the use of that trademark after its registration.”
Despite the fact that Flügel is quite known in European countries, it could not submit any proof that Red Bull was aware of the use of Flügel in Austria after the registration of the European trademark Flügel. Further evidence is rejected (because it was new and also it could not evidence the knowledge). The Board of Appeal further affirms the decision leaving Asolo empty handed.

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