By Scott Coulthart, Special Counsel
In the news recently it was reported that Red Bull has filed a dispute with the US Patent and Trademark Office seeking to prevent the Old Ox Brewery from registering a trademark of its name. Red Bull says that because the name “Old Ox” refers to the same class of bovine animals, and additionally that because an ox is a castrated bull, the registration and use of this trademark by Old Ox Brewery will cause confusion amongst consumers.
So, would Red Bull have a claim if this was a dispute fought out in Australia?
The answer to that question is not quite as straight forward as you might think. It is not necessary for a registered trademark to be substantially identical to another trademark before the owner of the registered trademark can oppose registration of the disputed trademark. It can be enough that the similarities between them, from the perspective of the average consumer, could be said to be deceptive. If it can be shown that confusion would be caused between average consumers, then registration of the disputed mark might successfully be opposed.
Here though, the logo used by Old Ox Brewery and indeed the name “Old Ox Brewery” seem to be remarkably different from the various trademarks owned and used by the Red Bull group of companies, and one might be forgiven for thinking that it would take a considerably less than average consumer to be confused between the two.
Old Ox Brewery President Chris Burns has in fact penned a colourful letter to Red Bull (found here) which should leave them under no misapprehension about how he feels about their claim. For Red Bull’s part, they argue that the words “Bull” and “Ox” are deceptively similar in the context of the relevant trademarks.
It remains to be seen, though, whether a court would find this to be a load of Ox.
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