Brand Protection Strategies - Taking the Bull by the Horns

For many years Red Bull has been a famous producer of energy drinks and, understandably, is keen to protect its brand. Recently the drinks giant challenged an application by another large drinks corporation, Bullards, to register the mark ‘Bullards’ with the UK Intellectual Property Office (IPO).

Bullards was originally founded in 1837 and specialises in the production of beer, wine and spirits. The company was rebranded in 2015 with a newfound focus on distilling dry gin. In February 2021, Red Bull contacted Bullards alleging that the use of the word 'bull' in their trading name was similar to the 'Red Bull' trademark and as such was likely to cause confusion amongst consumers. Red Bull requested that Bullards withdraw their trademark application under certain goods, including non-alcoholic drinks, in an attempt to limit any possibility of infringement, but Bullards refused to do so.

Red Bull has now formally opposed Bullards' trademark application on the basis that it is likely that the two brands will be confused by consumers. However, Bullards has intimated that they intend to expand their product line to include non-alcoholic mixers and so are reluctant to withdraw any aspect of their application. The matter has now been referred to the IPO for a formal hearing.

This is not the first time Red Bull has taken action to protect its rights. Red Bull attempted to register the combination of its signature colours, blue and silver, as a trademark for energy drinks. However, the Court of Justice of the European Union held this to be invalid. Additionally, Red Bull's website has a reporting page which is designed to encourage any suppliers who have been offered or sold counterfeit products to report details of the sale. This allows Red Bull to take prompt legal action against the sale of any lookalike products.

Accordingly, whilst not always successful, Red Bull's persistent approach highlights the importance of having a strong brand protection strategy.

What can brands do to protect their Intellectual Property (IP) rights?

Big brands such as Red Bull tend to make considerable investments in creating and promoting their brand. Therefore, it is vital to ensure that the goodwill generated is sufficiently protected. The obvious option is to protect the brand name, as Red Bull are seeking to do. However, the uniqueness of a product may not be confined to its brand name. The manufacturing process, packaging, shape and design of the product may all contain unique aspects which are open to protection. This makes it all the more crucial that brands explore all options available for protection and seek legal advice about implementing a robust brand protection strategy.

There are a range of IP rights which organisations can utilise to protect the goodwill associated with their brand:

• Trademarks - these confer an exclusive right on the holder to use their mark/logo, name or slogan/tag line, preventing other businesses from taking advantage of the reputation they have established.
• Patents – these are designed to protect innovative and original products or processes such as new technology or methods of production.
• Trade secrets – confidential information that relates to a business can be protected.
• Design rights - these can operate to protect the shape or composition of a product.

Our top tips regarding protecting these IP rights are as follows:

• It is crucial that you maintain clear records of the IP that you develop and intend to use. Doing so will greatly assist you if you need to raise or defend an infringement action.
• Consider putting in place a non-disclosure agreement (NDA) when sharing confidential or proprietary information with third parties.
• If you are going to make use of third party IP, then ensure that you have appropriate licences in place to protect your position.
• Similarly, if you allow another party to use your IP, it is important to put a licence in place, with clear termination provisions, to govern that relationship.

Enforcement

Once brands have obtained registered IP rights, it is equally important that they make adequate use of the enforcement mechanisms available to them.

In Scotland interdict can be obtained in order to prohibit a third party from carrying out, or continuing to carry out, an infringing activity. For example, a company with a registered trademark could look to obtain an interdict preventing a competing brand from using a term or logo which infringes upon the trademark. Interim interdicts can be obtained to stop infringing behaviour while the legal dispute is ongoing. Crucially, in certain circumstances these can be sought in Scotland without any prior notice being given to the alleged infringer. More information can be found in our handy guide to protecting your IP in Scotland.

How to hit the bull's eye

It is important that companies have an effective brand protection strategy in place, which includes being aware of its IP rights and enforcing those when necessary.

If you would like to speak to one of our experts about your organisation's brand protection strategy, please get in touch with a member of the IP, Technology & Data team or your usual contact at Brodies.