Redbull's fight for “wings”; IPAB dismisses Red Bull’s petition for not being a “Person Aggrieved”

The Hon’ble Intellectual Property Appellate Board (IPAB) in the case of Red Bull AG v. Dr. Reddy’s Laboratories Limited & Ors., dismissed the Red Bull AG’s (Petitioner) request for cancellation of the registered mark “YOUR WINGS TO LIFE” in the name of the Dr. Reddy’s Laboratories Limited (Respondent). Without considering the argument of non-use of the registered trade mark, IPAB dismissed the petition on the ground that petitioner could not prove itself to be a “person aggrieved” within the meaning of Section 47 of the Indian Trademarks Act 1999. The IPAB held that Red Bull's registered mark “GIVES YOU WINGS” and the respondent’s mark “YOUR WINGS TO LIFE ” are neither deceptively similar nor identical.

Red Bull sought relief mainly on the grounds that the mark “YOUR WINGS TO LIFE” under number 1058481 dated November 12, 2001 in class 9 had been registered by the respondent without any bona fide intention that it should be used in relation to the goods covered and that there has been in fact no bona fide use of the mark in respect of the covered goods for a duration of five years and three months prior to the date of filing of the cancellation petition. Further, Red Bull emphasized that it is a “person aggrieved” as the said registration has been causing them an unwarranted hardship by preventing them to conduct their own business activities despite being the prior and rightful proprietor of the reputed and well-known trademark “GIVES YOU WINGS” and its variations.

The IPAB dismissed the cancellation petition on the ground that Red Bull is not a “person aggrieved” within the meaning of Section 47 of the Act as the mark in question is not similar/ identical to the mark “GIVES YOU WINGS” of Red Bull and made it clear that the question of non-use of the registered mark is secondary and will only arise once the requirement of proving that the cancellation petition has been filed by a “person aggrieved” is fulfilled by the petitioner.

The present order of the IPAB has highlighted the strong position of a trademark rights holder and that the in cancellation actions, especially those filed on grounds of non-use under Section 47 of the Trade Marks Act, 1999, the initial onus of proving the case (primary task being proving that the petitioner is a “person aggrieved”) is on the petitioner but once it is discharged by the petitioner, it shifts to the respondent, and the respondent must produce documentary evidence to support its case.

The order of the IPAB can be read in detail at https://www.ipab.gov.in/ipab_orders/chennai/MP.NO.49-2015-in-ORA-262-265-TM-CHN.pdf