‘You’re giving us one hell of a corporate wedgie!’ Virginia craft brewer slams 'bullying' Red Bull
President Chris Burns penned an open letter to Red Bull on Old Ox’s website last Sunday, accusing the Austrian-headquartered company of trying 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”.
Old Ox Brewery was founded in June 2014 and the beer is available on tap in Virginia. Shortly before brewing began Red Bull’s attorneys sent the brewer a letter stating that the company objected to its trademark application to protect a logo and name.
Red Bull says Old Ox’s marks so resemble its own ‘Red Bull’ and ‘Bull Logo’ marks that this will cause consumer confusion, mistake or deception and thus damage to its brand.
Red Bull files Notice of Opposition
In this Notice of Opposition filed with the US Patent and Trademark Office on January 28, Red Bull’s California-based attorneys write: “Neither application…for the Old Ox marks contain a color claim, and can be used in any color, including red, in connection with the applicant’s beverages.
“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,” the notice adds.
But speaking to BeverageDaily.com today, Burns insisted that the Old Ox logo and name bore no resemblance to Red Bull’s.
'Red Bull? Their image projects virility and strength to me. We're an old ox'
“What their image projects to me is one of virility and strength, that’s what a bull represents. We’re an old ox, and an old ox isn't full of energy. And secondly, it’s castrated. So it wouldn’t be very virile at all. We see no chance of confusion at all,” he said.
“They’ve got the money to do this. And there’s no penalty for filing a frivolous objection. If this were filed in a Federal District Court then we’d have a mechanism to get our attorney’s fees reimbursed if this were a frivolous claim – but when they go through the US Patent & Trademark Office, we have no recourse,” he added.
'We either fight it, or we fold!'
“We either fight it, or we fold. And if we do decide to fight it then it’s on our dime. Even if we’re found to be in the right. This has become common practise – not just for Red Bull, but for many companies. And it’s become really difficult for small businesses to get a leg up when we face this type of obstacle.”
Burns said: “Our concern is the strain it puts any small business under. We’re about seven months old at this point, and should be putting all our resources into growing our business.
“We want to invest in a packaging line, additional fermentation vessels. But we can’t do that because we’re using the capital that we do have to pay attorney’s fees. It’s frustrating.
“Frustrating because we don’t feel Red Bull has any reason to come after us in the first place. We understand that everyone has a right to protect IP but feel that this goes well beyond that.”
“They’ve got the money to do this. And there’s no penalty for filing a frivolous objection. If this were filed in a Federal District Court then we’d have a mechanism to get our attorney’s fees reimbursed if this were a frivolous claim – but when they go through the US Patent & Trademark Office, we have no recourse." (Chris Burns, president, Old Ox Brewery)
BeverageDaily.com approached Red Bull USA for a comment last night, and were told today that one was pending.
Red Bull responds: 'We haven't sued anyone'
Red Bull sent BeverageDaily.com a statement today that states: “Red Bull has not sued anyone. Brands, big and small, seek to protect their trademarks every day. All we are asking for is to allow the administrative process at the US Patent & Trademark Office to run its course and we remain hopeful that a fair settlement can be reached by both parties.”
The company also sent us a link to this article by lawyer Danielle Teagarden on Brewery Law Blog for "perspective". Teagarden says she wants to help readers understand this dispute, and tries to see it from the company's standpoint.
“They call it an administrative process to try and downplay the impact it has on us," Burns said. "But the fact is that this isn’t exactly like going to the DMV to renew your driver’s license.
“This is something that, on average, typically takes 2-4 years to work out, if it goes the whole way, before settling. For all of that time you’re racking up legal expenses – there are lawyers involved, motions, depositions, discovery, a tribunal. They may not be suing us – but make no mistake, this is definitely a legal proceeding.”
Red Bull has a history in IP...
Red Bull is particularly aggressive in chasing down perceived breaches of IP, and in mid-2013 settled a similar dispute with UK microbrewer Redwell, after the latter promised never to produce energy drinks.
“They agreed never to produce energy drinks,” Burns said. “That was it, as far as we know. We’re more than happy to do the same thing – we have no intention of producing energy drinks, and would love to sign an agreement saying, ‘We’ll never produce energy drinks if you leave us alone.’
“But so far they’ve been very inflexible in dealing with us. They have much stricter demands – they want us to agree never to use the color red, never use any bovine terms or images in the color red, never use any combination of silver, blue and red, and never produce any soft drinks or energy drinks.”
Putting Red Bull’s other demands to one side for a moment, the soft drinks proscription won’t wash with Old Ox, as Burns explains.
“We would like to produce root beer for example, a very common beverage for breweries to produce – not so much for consumption, but for customers in our tasting room – we have a lot of designated drivers, people who like craft beer but don’t drink it themselves. We want to offer a product that we’ve made to those customers.”
*Story updated at 16:18 GMT, February 17, to include Red Bull's statement.
