Trademark dispute reaches bovine proportions

More sharks have been spotted swimming in the beer trademark waters these past few weeks, and the most recent sighting comes in the form of a (red) bull shark.

Startup brewery Old Ox in Ashburn, Virginia filed a trademark application at the United States Patent and Trademark Office (USPTO), for its name OLD OX BREWERY, and its logo, – a large white “O” with an overlapping, smaller light blue “X” – for “beer, ale, lager, stout, porter, [and] shandy.”

In response, energy drink producer and extreme sports sponsor Red Bull filed an opposition proceeding against Old Ox’s application. Old Ox faces different challenges in an opposition proceeding at the USPTO compared to the more familiar courtroom litigation.  A courtroom litigation addresses whether use of a mark infringes an existing mark, and a finding of infringement may result in money damages and an order to stop using the mark.  In contrast, an opposition seeks to block federal registration of a trademark. Accordingly, if Old Ox loses the opposition, it simply can’t own a federally registered trademark, but that does not necessarily block the mark’s use by Old Ox. Using the mark, however, would come at the risk of being sued in court by Red Bull. Arguably, the USPTO proceeding is a smaller undertaking than a full-scale litigation, but the David/Goliath imagery still holds.

Red Bull’s opposition states that the OLD OX mark is so similar to RED BULL marks that they are likely “to cause confusion, mistake or deception among purchasers, users and the public, thereby damaging Red Bull.” In support of that statement, Red Bull offers: “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.” A publicly-posted letter by Old Ox’s president Chris Burns reveals that Red Bull has demanded (likely in “settlement” discussions) that Old Ox never use the colors red, silver or blue and never use bovine terms or images.

I don’t know about you, fellow consumers of bovine-associated products, but I had no idea that an ox is a castrated bull. Of course, when I did my homework, I discovered that Red Bull is not telling the entire truth. It turns out that an ox can also be an uncastrated bull, or a female bovine – what seems to be most relevant to ox-ness is its status as a beast of burden.

For purposes of the opposition, the USPTO will evaluate the likelihood that consumers will confuse the OLD OX mark with the RED BULL marks. The most relevant factors of the analysis here will likely be the similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, and the relatedness of the goods attached to the marks. A quick and dirty analysis reveals that OLD OX looks and sounds nothing like RED BULL. Though both are associated with beverages, Old Ox produces alcoholic beverages, beer in particular, while Red Bull produces non-alcoholic energy and soft drinks. These Old Ox registrations do not contain any bovine images or claims to a particular color, but I’d hazard a guess that beverage consumers faced with the idea of an ox, particularly an old one, won’t associate it with the red fighting bulls featured in Red Bull logos, even if those consumers do happen to be bovine classification experts.

(See if you are confused by comparing images from Old Ox and Red Bull Facebook pages!  Would you think that an Old Ox beer is associated with Red Bull, or that a Red Bull energy drink is associated with Old Ox Brewery?)

Most often oppositions are voluntarily terminated because the parties reach a settlement agreement before the opposition runs its course. Here, it appears that the parties are in discussion, but “Red Bully” hasn’t budged on its terms. I imagined that Red Bull’s USPTO filing would suffer the same fate as Lagunitas’ recent ill-fated court complaint, namely voluntary withdrawal following public outrage across social media on the internet, but that has not yet come to pass. Let’s hope the USPTO is more reasonable, and less confused, than Red Bull.

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