Thursday, December 09, 2004

Ole! "RED RAVE" Sidesteps Charge Of "RED BULL"

In one of those cases where the marks are just not close enough, the Board dismissed an opposition to registration of RED RAVE for sports drinks, finding it not likely to cause confusion with the mark RED BULL registered for the same goods. Red Bull GmbH v. Cochran, Opposition No. 91152588 (September 29, 2004) [not citable].

The evidence showed that the goods of the parties are "energy drinks" sold in the same channels of trade. But the Board found the marks "significantly different." Although both begin with the word RED, the words RAVE and BULL "are common words which would be readily recognized as such and which are readily distinguishable." The marks also differ "in terms of sound as a whole."

As to connotation, "rave" means "to speak or write with a wild enthusiasm," or as a noun, "an all-night dance party, usually featuring electronically synthesized music." The word "bull," on the other hand, "connotes a male cow." This analysis led the Board to conclude that "Opposer's mark RED BULL does not connote wild enthusiasm or an all-night dance party, but rather a 'red bull.'"

Red Bull rather surprisingly argued that the alleged similarity in the marks is increased by Applicant Cochran's similar trade dress, but the Board understandably found the trade dress of the parties "not at all similar."

Red Bull submitted evidence of extensive advertising of its RED BULL mark, but did not specifically allege that its mark is famous. The Board pointed out that even if the RED BULL mark were famous, the differences in the marks would preclude a likelihood of dilution finding.

Applicant Carl Cochran may have won this encounter, but another challenge lies ahead. Cochran's own testimony appeared to show that he had not used the RED RAVE mark "on or in connection with the goods" prior to the filing of his use-based application. The TTAB therefore advised the parties that:
"if applicant ultimately prevails herein, applicant's involved application will be remanded to the Trademark Examining Attorney pursuant to Trademark Rule 2.131 for reexamination with respect to the issue of whether the application is void ab initio."
In that reexamination, the PTO will undoubtedly see red if there is any bull.


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