The court turned down Red Bull’s plea for an immediate injunction banning competitor Sinergy’s look-a-like pack. Red Bull has vowed to fight on, but what are its prospects at trial?
Topic: Lookalikes
Who: Red Bull and Sinergy Energy Drinks
Where: UK
When: May 2004
What happened:
The energy drink brand Red Bull failed to obtain an interim injunction from the High Court banning further use of the current packaging of competing brand Sinergy.
Looking at the products side by side, one can understand Red Bull's concerns.
The cans are exactly the same size and shape and the colourways are very similar, with blue and silver/white panels and the prominent figuring of red typeface in the brand name of both. The Sinergy product was recently launched by music festival organiser Mean Fiddler and Red Bull claimed that it had been handed to consumers at Mean Fiddler events asking for Red Bull. However, the High Court rejected Red Bull's application for any immediate injunction banning the Sinergy livery. It was not persuaded that consumers would be confused and felt that Mean Fiddler had sufficiently differentiated its product from the Red Bull equivalent in its marketing and advertising.
Red Bull is undaunted and has launched an appeal against the decision as well as announcing that it is determined to continue the action to a full trial.
Why this matters:
For Red Bull to be able to succeed in a passing off action, it will have to persuade the Court that there is a likelihood of confusion in the market place between the source of the Sinergy product and that of Red Bull. It will also have to show that as a result of this confusion, Red Bull's makers will sustain significant losses.
There can be little doubt that the Red Bull packaging is distinctive and now enjoys considerable brand recognition. There are certainly striking similarities in the colours and overall get-up of the two packs, but the fact remains that the actual brand names Red Bull and Sinergy are quite different and there are visible and clear differences in the pack graphics.
Factors for the court
Clearly these factors operated on the mind of the court in turning down the Red Bull application for an immediate injunction. At this stage in litigation, however, the Court must also weigh up the so-called balance of convenience. Here it must focus on looking at the damage that will be sustained by the makers of Sinergy by having to completely repackage the product compared to the damage that might be sustained by Red Bull in having to continue with an allegedly confusing lookalike until full trial in maybe one or two years time.
If and when the matter comes to full trial, this balance of convenience issue will fall away, but it will still be incumbent on Red Bull to show actual or likely confusion. In fact, unless by that time it can produce cogent and comprehensive evidence of widespread consumer confusion it will be in major difficulty, and no doubt it is already engaged in an extensive evidence gathering exercise
