Apple Music – Red bull and Red Dragon.

Apple Music’s trade mark application on hold by U.S. Appeals Court

Apple Inc. lost a battle to register part of a federal trade mark for “Apple Music” last Tuesday, April 4, after a U.S. Appeals Court ruled in favour of a jazz musician who challenged the tech giant’s application.

Apple started a streaming service in 2015, and that year filed a federal trade mark application for “Apple Music”, which covers multiple categories of music. Bertini is a jazz musician (trumpet player) known as “Apple Jazz”. Bertini opposed the application, arguing that the name would case confusion with the “Apple Jazz” branding he had used to promote concerts since 1985.

Apple, in turn, tried to argue that Bertini’s “Apple Jazz” trade mark is invalid, since Apple owns the earlier trade mark “Apple Corps” (the name of the Beatles’ music label). The US Court of Appeals for the Federal Circuit rejected this argument and allowed Bertini to block Apple’s federal application for the Apple Music trade mark, for live performances. It said Apple cannot “attach” its live performance mark to the Apple Corps’ recorded music mark, which is in another category of products. According to the Court “tacking a mark for one good or service does not grant priority for every other good or service in the trademark application”.

Red Dragon found confusingly similar to Red Bull

The Swiss Federal Administrative Court has upheld Red Bull GmbH’s opposition to the Red Dragon trademark based on its Red Bull trademark, following a decision by the Swiss Federal Institute of Intellectual Property (IGE).

Reign Beverage Company LLC filed the Swiss trademark Red Dragon in class 32 for energy drinks. Red Bull GmbH filed an opposition based on its earlier trade mark Red Bull. By decision of 14 December 2021, the IGE granted the opposition, finding at least an indirect likelihood of confusion, especially because of the conceptual similarities between the signs.

On 28 January 2022 Reign Beverage Company filed an appeal with the Federal Administrative Court, asking the Court to overturn the IGE’s decision and allow their trademark to be registered. According to Reign Beverage Company, although both marks use the word “red”, theirs uses a mythological creature (dragon), whereas the earlier mark uses a real animal (bull). They added that their drink reflects “power, abundance, wealth and vitality” whereas Red Bull conveys a feeling of “evil and fear”. In their view, there is no reason to confuse a dragon with a bull, and the average consumer of beverages would have no objective reason to confuse them.

The problem here is that, as we know, Red Bull is a very well-known brand, and seeing as both beverages are energy drinks, use an animal (mythological or not) and the word “red”, there could be a likelihood of confusion and also the possibility that Reign Beverage may be unfairly benefiting from the reputation of the Red Bull brand.

On 11 January 2023, the Federal Administrative Court concluded as follows: after comparing the signs, there was a similarity due to the initial element “red”, a common structure consisting of a colour adjective followed by a noun, and the use of animals, so there was indeed a likelihood of confusion between the two marks. For these reasons the appeal was dismissed.