Red Bull GmbH v. NOVADELTA - COMÉRCIO E INDÚSTRIA DE CAFÉS, S.A.

From a visual perspective, the word ‘RED is at the beginning of both marks and is therefore in the most eye-catching position. There is thus a degree of similarity between the marks compared. For the same reasons as those given in the context of the visual comparison (which apply mutatis mutandis), there is a certain degree of similarity between RED BULL and RED. From a conceptual perspective, the marks share the word ‘RED, which, as already mentioned, will be understood by consumers in the EU at large. Thus, the marks (Class 30) have a certain degree of similarity between them. The earlier mark has been shown to have a high level of recognition, especially in Austria and Germany. Its reputation is therefore high. Moreover, the proximity between the goods in Class 30 and the overlap of the signs in the term ‘RED make it more probable that the relevant public will immediately recall the earlier mark when seeing the mark applied for. Therefore, taking into account that there is likely to be a link made in the relevant consumers mind (particularly, in Austria and Germany, where the earlier mark enjoys a strong reputation) between the marks at issue, and bearing in mind that the earlier mark enjoys a reputation and has thus acquired an enhanced distinctiveness on those markets, it seems highly plausible that the mark applied for will ‘ride on the coattails of the mark with a reputation in order to benefit from the power of attraction, the reputation and the prestige of that mark and to exploit, without paying any financial compensation, the marketing effort expended by the proprietor of the mark in order to create and maintain the marks image. The appeal is dismissed.