Trademark Infringement
In the Matter of the Trade Marks Act and TM Application No. 67288 'BULZAI ENERGY DRINK' in the Name of Kamal Khanbabaei General Trading Co. LLC and Opposition Thereto by Red Bull GmbH [2013]
Facts
Kamal Khanbabaei General Trading applied in January 2010 to register "BULZAI ENERGY DRINK" (word and device, Class 32) with a red/black/white colour restriction. Red Bull GmbH opposed in September 2010, claiming BULZAI was confusingly similar to its RED BULL marks and would take unfair advantage of RED BULL's global and Kenyan reputation, citing unit sales in Kenya rising from 765,792 in 2005 to 4,850,016 in 2010 and marketing spend rising from €124,000 to €849,000 over the same period.
Issues
Whether BULZAI was confusingly similar to RED BULL marks; whether RED BULL marks were well-known in Kenya; whether the marks could coexist under honest concurrent use; and the relevance of prior foreign rulings between the parties.
Rule
Trade Marks Act ss.14, 15(1)-(2), 15A(4); Paris Convention; TRIPS Agreement.
Analysis
The Registrar found BULZAI phonetically, visually and conceptually similar to RED BULL, particularly through shared use of "bull" imagery and the colour red on identical goods. On well-known-mark status, Red Bull's sales and marketing evidence and its 205-jurisdiction registration record were held sufficient to prove notoriety both globally and in Kenya. On coexistence under s.15(2), the applicant provided no evidence of honest concurrent use in Kenya or special circumstances, so could not rely on that provision; foreign rulings from other jurisdictions were held irrelevant to the Kenyan determination.
Conclusion
Registration of BULZAI refused as contrary to ss.14, 15(1) and 15A(4) of the Trade Marks Act; costs awarded to Red Bull GmbH.
Ruling available at kipi.go.ke.