Who: Red Bull GmbH and Rich Energy Limited (now known as Lightning Volt Limited)
Where: United Kingdom
When: 18 July 2019
Law stated as at: 2 August 2019
Last month, Red Bull GmbH, the makers of popular energy drink Red Bull and name sponsor of the Red Bull Racing Formula One team, issued legal proceedings against Rich Energy Limited and its co-founder, William Storey. Followers of F1 may recognise the name Rich Energy as the former lead sponsor of the Haas Formula One racing team before an unusual spat between the two companies last month saw the agreement terminated mid-season.
Over the last few months, Red Bull and Rich Energy have engaged in a bitter rivalry not only on the racing track but also in the promotion and marketing of their respective energy drinks. The current dispute centres on the bold marketing strategy taken by Rich Energy and the, not-so-subtle, references to the more established competitor on social media.
Red Bull has brought a claim against Rich Energy and William Storey, alleging infringement of its registered trade mark through use of the hashtag #betterthanredbull in social media posts on the Rich Energy Instragram, Facebook and Twitter pages. Red Bull is also arguing that Rich Energy has taken unfair advantage of, or has taken action detrimental to, the reputation of its marks. Rich Energy has used the phrases “Forget The Wings”, “Forget Wings, Rich Energy Gives You Horns”, “No Bull”, and “#nobull” on its social media pages. In addition, it has used the blue and red colours, prominently associated with Red Bull products, in at least two social media posts.
At the time of writing, Rich Energy and Mr Storey had yet to file their defence to the claim, which follows another intellectual property dispute, in which Rich Energy was found to have copied its stag logo from Whytes Bikes. Given recent high-profile events with the Haas relationship breakdown and reported internal disputes between Rich Energy and Mr Storey, it remains to be seen whether the dispute will reach court for judicial determination.
Why this matters:
These events highlight the rules in the Comparative Advertising Directive and how a competitor’s trade mark may be used in advertising without infringing on the owner’s rights. The Directive provides a number of conditions that must be met by advertisers, including that use of a competitor’s mark must not discredit or denigrate the mark, must objectively compare one or more material, relevant, verifiable and representative features, and must not take unfair advantage of the reputation of a trade mark.
The UK courts acknowledge that such advertising is in the public interest and will interpret these conditions in a way that will generally benefit the advertiser. Provided that the conditions are met, most advertisers will have a good defence to trade mark claims. If this case reaches court, it would test the limits of what is or is not permissible when using a competitor’s mark.