A short while ago I posted a piece on the power of social media with respect to certain IP disputes. There is a new dispute that might serve as a powerful footnote on this issue.
On January 28, 2015, Red Bull GmbH filed a Notice of Opposition in the USPTO against applications for the OLD OX BREWERY and the OX Logo marks, as shown above. Red Bull alleges that its famous energy drinks and other beverages will be confused with the beverages sold by Old Ox Brewery under the foregoing marks. In particular, Red Bull alleges that:
An “ox” and a “bull” both fall within the same class of “bovine” animals and are virtually indistinguishable to most consumers. In addition, an ox is a castrated bull.
Applicant intends to use its name and logos on other Class 32 beverages,namely soft drinks for non-beer drinkers….
The Class 32 goods on which Applicant claims it has an intent to use in conjunction with Applicant’s OLD OX Marks include and are closely related to, used for the same or similar purposes, and/or are or will be advertised and promoted to and directed at the same trade channels, the same purchasers, and are or will be used in the same environment as Opposer Red Bull’s products and related goods and services.
Simultaneous use of Applicant’s OLD OX Marks on the Class 32 goods … and Opposer Red Bull’s RED BULL and Bull Logo Marks on its goods and related services … is likely to cause confusion, mistake or deception among purchasers, users and the public, thereby damaging Red Bull.
The critical allegations are thus that consumers will confuse or conflate the terms “Bull” and “Ox” and that the relevant beverages are related or overlap.
In a response posted to its website and social media on February 8th, Old Ox Brewery posted a public letter to Red Bull which stated as follows, in relevant part:
We are a small startup brewery in Ashburn, Virginia. We’re family-run, we love beer, and we love our community. For reasons that we cannot understand, you have attempted to strong arm us into changing our identity for the last 10 months because you believe folks might mistake Old Ox beer for Red Bull energy drinks. We respectfully disagree. The only similarity between our two products is that they are both liquids. You make non-alcoholic (but very extreme) energy drinks. We make delicious (but laid-back) beer. Our consumers are looking for two distinctly different experiences from our respective products.
Basically you are holding us hostage with a list of demands that, if agreed to, would severely limit our ability to use our brand. Demands like, never use the color red, silver or blue; never use red with any bovine term or image; and never produce soft drinks. Do you own the color red? What about fuchsia, scarlet, crimson, or mauve? Are you planting your flag in the color wheel and claiming those shades for Red Bull? Do you claim exclusive rights to all things bovine? Do you plan to herd all heifers, cows, yaks, buffalo, bison, and steer into your intellectual property corral, too?
When we refused to succumb to your demands, you responded by filing a formal opposition to not just our trademark but to the very name Old Ox Brewery. Way to step on our American dream. You say you are protecting your intellectual property rights, but your claim, in our opinion, is Red Bulls**t.
…. Can you honestly look at our brand and say, “this is a threat to my image?” We don’t think you can. Given that, we repeat our offer: We agree NEVER to produce energy drinks. In exchange, we are asking for one simple thing: Leave us alone. Drop this trademark dispute.
In addition, Old Ox has recently started a change.org petition that has so far collected over 1,600 supporters.
The broader news media has picked up on this dispute and, so far, they are generally siding with Old Ox. For example, the Washington Post’s article is titled “Red Bull Wants to Rename an Ashburn Brewery, Because an Ox Looks Like a Bull.” Whether Red Bull persists with the opposition or decides to moderate its demands, remains to be seen.