Friday, February 15, 2019

TTABlog Test: Is "PINK COW & Design" Confusable With "RED BULL & Design" for Soft Drinks?

Red Bull GmbH opposed an application to register the mark PINK COW & Design (shown first below) for "Beers; mineral and aerated waters; soft drinks; smoothies; vegetable juice; fruit drinks and fruit juices; concentrates for making fruit drinks; syrups for making non-alcoholic beverages; excluding energy drinks," alleging a likelihood of confusion with its registered mark RED BULL & Design (second below) for "soft drinks; and sports drinks." The goods overlap ("soft drinks"), but what about the marks? Are they confusable? How do you think this came out? Red Bull GmbH v. Morganti Flavio Innovaciones Gastronomicas, S.L., Opposition No. 91223317 (January 18, 2019) [not precedential] (Opinion by Judge Susan J. Hightower).

du Pont factors 2, 3, and 4: Because the goods are identical in part, the Board presumed that those goods move in the same channels of trade to the same classes of consumers. These factors "weigh heavily" in opposer's favor. Moreover, because the involved goods are relatively inexpensive, "the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care."

Strength of Opposer's Mark: The Board found Red Bull's mark to be inherently distinctive. As to commercial strength, Red Bull claimed that its mark(s) are famous. It provided "significant evidence of fame" (all under seal). Although Red Bull's evidence had some shortcomings, it "easily supports a finding that Opposer's mark is famous on the spectrum employed" in the du Pont analysis. This fifth du Pont factor heavily favored opposer. [Note, although this evidence of fame related to "energy drinks," which are expressly excluded from applicant's identification of goods, the evidence was pertinent because the Board found that energy drinks are "soft drinks." - ed.].

Similarity of the Marks: The Board found some similarity between the marks in sound and appearance, and "strong similarity" in connotation and overall commercial impression. "The verbal portion of each mark totals seven letters and comprises two short, one-syllable words denoting a color followed by a term for a bovine."

As the connotation, the Board observed that "pink is a lighter shade of red." Furthermore, "'Bull' is defined as a 'male bovine; especially: an adult uncastrated make domestic bovine,' while definitions of 'cow' included both 'the mature female of cattle' and 'a domestic bovine animal regardless of sex or age.'"

Thus, “bull” and “cow” can mean male and female bovines, respectively. But in common vernacular, a “bull” also can be a “cow,” that is, “a domestic bovine animal regardless of sex or age.” Per the record, therefore, consumers can interpret BULL and COW either as designating bovines of the opposite sex or as synonyms.

The fact that the involved marks each incorporates bovine imagery increases their similarity. "Indeed, consumers are likely to construe Applicant's mark as a feminized version of Opposer's mark."

The Board therefore found that the first du Pont factor favors a finding of likely confusion.

Conclusion: Noting that fame plays a dominant role in the du Pont analysis, and keeping in mind that any doubts must be resolved against the newcomer, the Board found confusion likely and it sustained the opposition. The Board declined to rule on Red Bull's dilution and false association claims.

Read comments and post your comment here.

TTABlog comment: What do you think? Please avoid any barnyard epithets.

Text Copyright John L. Welch 2019.


At 8:40 AM, Anonymous Anonymous said...


Does PINK COW "dilute" REDBULL, meh, maybe because it is a parody mark in some sense.

Applicant should have filed for a more limited list of goods and would have had a better chance.

Beers; mineral and aerated waters; smoothies; vegetable juice; fruit drinks and fruit juices; concentrates for making fruit drinks; all excluding energy drinks,"

At 8:57 AM, Blogger John L. Welch said...

But would the Board still find that the goods as amended are related to "sports drinks; soft drinks"?

At 12:04 PM, Anonymous Anonymous said...

So, OK, fame is a thumb on the scale. But the Board completely blew the 'similarity of the marks' analysis.

Maybe save this one to cite for 'similarity' when you are opposing a mark that has words (PINK COW v RED BULL) and/or images (soaring, winged cow v two head-down, tail- down charging bulls)that look and sound different and has words and/or images that have different literal and symbolic meanings?

At 12:37 PM, Blogger TMAttorneyHeller said...

Are there really red bulls and pink cows? Because the marks are both for animals and a beverage product, in my opinion, consumers would assume that the products come from the same party or that the other party has permission to use a silly name for a beverage. Many years ago, I argued that consumers would find the marks Chicken of the Sea and Tuna of the Farm to be related and the Board agreed with me.

At 4:35 PM, Anonymous Anonymous said...

Re: no consumer would confuse the two marks, the "feminized version" angle popped into my head right away. I think that while those of us with a trademark background would not be easily confused, but can envision the average consumer thinking there was some affiliation.

That said, I'd wager the applicant knew of the risk given that they excluded energy drinks and filed intent-to-use.

At 5:18 PM, Blogger TM Guy said...

Why, I just told my wife to put on her shopping list a case of that energy drink whose name totals seven letters and comprises two short, one-syllable words denoting a color followed by a term for a bovine.

This is why Board decisions are appealable.

At 5:59 PM, Anonymous Anonymous said...

I feel this opinion was squeezed into a TTAB "sustained" decision template, with a poor analysis of the factors.

Also, even though the Board said it had not considered the Opposer's other pleaded marks, it then said it would not matter anyway.

However, another RED BULL slogan is "it gives you wings." That seems to have had some impact on the decision, even though they said it did not.

RED BULL was sued for false advertising because a Plaintiff did not actually get wings. Red Bull settled and agreed to refund $10 to any US customer who bought the drink since 2002.

At 11:47 AM, Anonymous Anonymous said...

reminds me of the SOUTH BUTT vs NORTH FACE set of facts.
Parody, man.


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