Red Bull GmbH v Big Horn UK Ltd & Ors [2020] EWHC 124 (Ch)
Red Bull sued 3 defendants, a UK company Big Horn (UK) Ltd, its director and controlling mind, Lyubomir Enchev, a Bulgarian national and a Bulgarian company Voltino EOOD for infringement of 3 EU device trade marks – all of which can be found on cans of RED BULL energy drink. The Defendants failed to comply with orders on disclosure, and D1 & D3 relied on no evidence at trial.
Judgment in default was obtained against Voltino in October 2019. The Trial concerned only D1 & D3.
D1 & D3 did not accept that the signs were similar to the Red Bull trade marks or that those marks had a reputation under Art. 9(2)(c) of EU Trade Marks Regulation and required Red Bull to prove that their highly distinctive marks had the necessary reputation, D3 challenged the allegation of joint tortfeasorship. At trial, D1 & D3 finally admitted that the Red Bull trade marks were well known marks and that the Defendants had known about them for many years.
Unusually, the trial was conducted using phone conference facilities to Bulgaria, where D3 attended, made submissions and carried out cross-examination of Red Bull’s witness with the assistance of an interpreter on behalf of the UK company and himself.
The Court accepted that the marks were well known and found that there were visual and conceptual similarities between the marks and the signs which would lead the average consumer to make the necessary link and that the signs took unfair advantage of the repute of the Red Bull trade marks.
The Court granted an EU wide injunction against the Defendants and ordered a substantial award of costs to be paid by the Defendants, which included a sum to reflect the lack of co-operation of D1 & D3 throughout the action.
Jacqueline Reid was instructed by Taylor Wessing for the Claimant