(Updates with Red Bull response in sixth paragraph.)
Dec. 15 (Bloomberg) -- Red Bull GmbH, an Austrian energy- drink maker, lost a challenge at the European Union’s highest court over an alleged breach of its trademark by a Dutch company.
“A service consisting of the mere filling of cans bearing a sign protected as a trademark is not use of that sign which is liable to be prohibited,” the EU Court of Justice, the region’s top court, said in a ruling in Luxembourg today.
Red Bull, based in Fuschl am See, Austria, sued Dutch company Frisdranken Industrie Winters B.V. after it filled up cans bearing logos and texts such as “Bullfigter,” and “Red Horn” with drinks for another company, called Smart Drinks. Red Bull, whose logo is a red bull, argued its Benelux trademark rights had been infringed.
Frisdranken didn’t use the protected trademark and couldn’t have infringed it, the court said.
“The service provided by Winters consists of the filling of cans and this service does not have any similarity with the product for which Red Bull’s trademarks were registered,” said the EU court.
Tina Deutner, a spokeswoman for Red Bull, declined to comment.
The case is pending at the Dutch Supreme Court, which last year sought the EU court’s guidance whether a company that fills up cans provided by another company, can breach trademark rights.
The case is: C-119/10, Frisdranken Industrie Winters BV v. Red Bull GmbH.
--Editors: Peter Chapman, Andrew Clapham
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