We try to take a level-headed, objective approach to trademark infringement stories that pop up because it is a serious issue, and even if some might seem a bit overboard or silly, these marks need to be created and defended for a reason. If you need more advice on acquiring or defending your own trademark, please check out our archives and cover your bases.
OK, now that we have that preamble out of the way, here is a trademark infringement story that does cause a bit of an eye roll. Multiple outlets are reporting that Red Bull is challenging the use of “ox” in name of Old Ox Brewery (named after Old Ox Road) because bulls and ox are both bovine animals.
It does get a little more detailed than that, but not much. Some tidbits from The Washington Post:
Ten months ago, before Old Ox had created its first batch of beer, its owners received a letter from lawyers representing Red Bull GmbH, notifying them that Red Bull objected to their trademark application for the brewery name and logo, which at the time was a script design of a bull’s face. They also objected to the slogan the brewery was using, which was “No Bull Beer.”
“We felt it was a series of issues that could be taken care of on an informal basis,” says Graham Burns, Old Ox’s chief financial offer. “We’re willing to do certain things. We’ve promised we won’t make energy drinks. If there’s a specific shade of red they want us to stay away from, let us know.”
“But they didn’t just want us to not use red,” Burns continues, “They didn’t want us to use any blue or silver, which are the colors on their cans. Every time we heard from them, it got more and more complicated. It became clear from the nature of the opposition that they opposed to the name of the brewery altogether.”
It goes without saying that Red Bull is very big (and no stranger to coming after craft breweries) and Old Ox is very small (2,500 bbls in its first year), but citing the sizes of entities in a trademark challenge isn’t really helpful because a small business isn’t allowed to call itself Coke or Google or brand itself with a Nike swoosh just because it is small. And part of keeping a trademark is actively defending it. But, a big business shouldn’t be allowed to just use its legal team to push around little guys on bogus claims either. We would file this one in the latter category (by we, I mean CBB editors who have zero legal degrees and never even win our football pick ’em leagues).
The trademark standard is the likelihood of confusion in the market place for a reasonable consumer (for a better, complete definition, go here). The word reasonable is tricky, right? Especially considering you can apparently be unreasonable when sending out cease and desist letters.
Anyway, enough of our two pints. Here is how the folks at Old Ox chose to handle the matter in their open letter to Red Bull:
Hey Red Bull –
You seem pretty cool. You sponsor snowboarders, adventure racers, rock climbers and motocross bikers. You launch people into space so that they can skydive back down to earth. That’s all really darn cool. For all I know, you’re reading this while strapping yourself into a Formula One racecar that is about to be lit on fire and jumped over a large chasm of some sort. How cool would that be? Feel free to give it a try.
Here’s the thing, though. You are being extremely uncool to us at Old Ox Brewery. 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.
We can only interpret your actions as one thing—bullying. You are a big Red Bully. Just like that mean kid from grade school pushing everyone down on the playground and giving us post-gym class wedgies. You are giving us one hell of a corporate wedgie. We don’t appreciate it and we sure as hell don’t deserve it.
Is this really what you’re about? Are you a bully? Your extensive marketing campaigns (your glitzy advertising, your sponsored sports events, your death defying stunt shows, etc.) certainly don’t project that image. Take a hard look at your “case.” 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. The only people benefiting are the lawyers.
Sincerely and Uninfringingly Yours,
President — Old Ox Brewery