Energy drink maker opposes personal trainer’s bull trademark. RED BULL v. LENTZKE

A trademark is something that a producer of products uses to brand the product it sells. Traditionally a trademark is thought of as a symbol, word or phrase that is used to distinguish similar products from one another. The association that consumers make between a trademark and the source of a product is the primary measure of the strength of a trademark. When someone brands products using a trademark in a way that causes consumer confusion as to the source of a product, that can be considered trademark infringement.

Because the strength of a trademark is closely tied to the association a consumer makes with a trademark, a trademark owner must carefully police the use of its trademark in the marketplace. Some trademark infringement lawsuits seem silly to the average person, but sometimes silly lawsuits are necessary to maintain the rights to a trademark. However, a trademark owner must balance the protection of its trademark with the negative opinion the public can develop if a trademark owner is too zealous. If a trademark owner claims that any trademark which bears a slight resemblance to their own is infringing, that can sour the public opinion of the trademark owner. A trademark owner that develops a reputation as a bully can find themselves with a trademark that consumers avoid.

When a trademark application is filed in the United States, the United States Patent and Trademark Office reviews the application. The proposed trademark is scrutinized to see if it is confusing similar to an already registered trademark. If the USPTO does not believe the proposed trademark is confusingly similar, the trademark application is published for opposition. Opposition is an opportunity for trademark owners to object to the registration of a trademark because they believe it would damage their own registered trademark. The Trademark Trial and Appeal Board of the USPTO hears opposition applications.

RED BULL, GMBH v. JASON LENTZKE, Opposition 91264945 (TTAB 2020) is an example of a trademark owner using trademark oppositions to zealously protect its trademark.

Applicant in this case is Jason Lentzke, an elite level endurance athlete and coach. Applicant filed a trademark application on February 21, 2020 for the trademark (the “Winged Bull Device Mark”) for “Providing fitness training services in the field of triathlons, marathons and cycling; Providing personal fitness training for triathlons, marathons and cycling” in Class 41, claiming the Winged Bull Device Mark. An example of the trademark is reproduced above on the left. Applicant first used his trademark in commerce in connection with these services on April 1, 2013. The Application was published for opposition on June 16, 2020. The application was opposed by German beverage maker Red Bull.

Opposer is the producer of an internationally known energy drink sold under the brand RED BULL. Opposer is best known for its energy drink but opposer is also engaged in the development, marketing, advertising, distribution and sale of various products and services including, personal fitness training services, strength and conditioning training services. An example of the opposer’s trademark is reproduced above on the right.

In its Notice of Opposition, Opposer asserts that its registered trademark qualifies as a famous trademark and that Applicant’s trademark is intended to call to the mind of consumer’s Opposer’s trademark. Opposer claims that Applicant’s trademark is likely to cause confusion, to cause mistake, and to deceive, therefore Applicant’s mark is thus unregistrable under 15 U.S.C. §1052(d). Further, Opposer claims Applicant’s trademark will cause dilution by blurring even if consumers are not confused about the producer of a product, therefore Applicant’s mark is thus unregistrable under 15 U.S.C. §1052(c).

Opposer requests that the TTAB sustain the Opposition, and that registration of the mark in the Application be refused. Given the success that Opposer has had in the past, opposing other trademarks that feature a red bull, it is likely they will succeed in this case. However the outcome will depend on what evidence the Applicant can present to the TTAB.

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