No trade mark protection for the famous mixed drink "FLÜGERL"

Everybody who has ever been to Austria for skiing holidays, is very likely to have come across the famous mixed drink "FLÜGERL"; a "FLÜGERL" is a shot-like drink consisting of a RED BULL® and red or white vodka and is very commonly offered at après-ski huts in Austrian ski resorts. The trade mark "FLÜGERL" was registered for non-alcoholic drinks (class 32) as well as for alcoholic drinks (class 33).

It was undisputed that the trade mark owner himself did not produce or sell any drink under the trade mark in dispute. However, the trade mark owner argued that the combination of vodka and RED BULL® was proposed by the trade mark owner, additionally advertising material was provided to bars and restaurants. More than 20,000 bars and restaurants in Austria use the trade mark with the consent of the trade mark owner, it is even checked whether the mixed drink really comprises RED BULL®; in case RED BULL® is contained in the mixed drink, the use of "FLÜGERL" is tolerated.

The revocation claimant on the other side argued that under the trade mark in dispute a whole variety of mixed drinks was offered. Accordingly, the trade mark was used as a generic term and not as a trade mark. Additionally, there was no explicit consent by the trade mark owner; mere acquiescence by the trade mark owner is not sufficient for genuine trade mark use.

After citing relevant national case law and judgments of the CJEU on genuine trade mark use, the Austrian Supreme IP Tribunal (ASIPT) decided that there was undoubtfully no use for non-alcoholic drinks in class 32, as the non-alcoholic part of the mixed drink is protected by the famous trade mark RED BULL®. Thus, the use of RED BULL® cannot also serve as basis for protection of the alcoholic mixed drink.

With respect to alcoholic drinks in class 33 the ASIPT found that the trade mark in dispute was doubtlessly used with the consent of the trade mark owner. However, the use was not a genuine trade mark use. Also, when a third party uses the trade mark, it is a prerequisite for genuine trade mark use that the trade mark is used in such a way that the public considers the goods or services belonging to a specific undertaking. However, in the present case it was apparent to the public that the mixed drink was produced by components of different origins. Accordingly, the public would not consider the use of the sign "FLÜGERL" as an indication of origin. Rather the public understood the sign as describing any mixed drink which consists of a certain or similar combination. Accordingly, the sign was not used for serving as an indication of origin. Thus, the trade mark "FLÜGERL" was cancelled from the register.

Generally speaking, the judgment closes the door for trade mark protection for mixed drinks, where not all ingredients come from the same undertaking and the exact composition of the ingredients is not specified.

Dr. Rainer Beetz, LL.M.