Red Bull Wins Trade Dress Lawsuit against Albanian Competitor

Red Bull GmbH, the well-known energy drinks manufacturer, initiated in Albania in June 2012 a court proceeding against Arseni, Albanian energy drinks importer, on the ground that the defendant’s product design constituted an infringement of the plaintiff’s well-known trademark, as well as an act of unfair competition.

It should be noted that there is no legal definition of trade dress in the Albanian law. However, the trademark law and the unfair competition law provide legal basis for protection against copycat packaging or trade dress infringement.

In its decision of December 24, 2012, the First Instance Court of Tirana recognized the well-known status of Red Bull marks in Albania and entirely accepted the plaintiff’s claims.

Various IP-related issues rarely heard and decided on by the Albanian courts were addressed during the proceedings. One of the issues that the Court raised was the criteria for determining what constitutes a well-known mark and whether Red Bull marks are well known in Albania.

After carefully analyzing the evidence submitted by Red Bull showing that 97 percent of Albanian public recognized the Red Bull Energy Drink mark, the Court acknowledged the well-known status of Red Bull marks in Albania. It further stated that the blue/silver color combination and the trapezoid-like graphic solution is one of the most distinctive characteristics of Red Bull marks and that the Red Bull marks have acquired distinctiveness through the extensive use in the Albanian market. The Court, rightly, did not spend much time in determining the minimum awareness that the mark must attain in order to pass the threshold of being well known, but merely stated that 97 percent recognition is extremely high.

The Court also satisfied the plaintiff’s unfair competition claim and ruled that the similarities in the packaging of the products, e.g. the size and shape, can be taken into account while estimating the confusion in the course of trade.

After concluding that the Albanian legislation has fully transposed the Council Directive 89/104/EEC of 21 December 1988 as well as the CJEU rulings put forward by the plaintiff, the Court stated that the CJEU rulings constitute an important guideline the Albanian authorities should follow. The Court clearly followed the CJEU reasoning when estimating the likelihood of confusion.

In the end, the Court found that the defendant’s mark causes likelihood of confusion, gives the defendant unfair advantage of the reputation of well-known Red Bull trademarks and is detrimental to one of the most distinctive characteristics of Red Bull trademarks, the blue/silver color combination and the trapezoid-like graphic solution.

Even though the First Instance Court’s decisions do not create judicial precedents in Albania, this particular decision is of great importance as the Court showed willingness to follow the CJEU criteria, finding them to be an important guideline for the Albanian practice.

This decision is now under appeal with the Appellate Court of Tirana. The IP professionals in Albania are eagerly awaiting the final outcome of this case.

By: Irma Cami

For more information, please contact Irma Cami at our Albania office.