29/04/2025
Do you think that drinking Red Bull energy drink will actually give you wings? If so, are those wings literal or metaphorical?
In 2023, Red Bull’s registration of the word-mark “GIVES YOU WINGS” was challenged in the EU on the basis that it gave a misleading message that would confuse consumers.
Ahmed Mahmoud Roshdy Kilany Dakroury (“the Applicant”) filed a request for a declaration of invalidity against the granted EU designation of International Registration No 1012380 GIVES YOU WINGS in the name of Red Bull GmbH. The EU designation had been partially cancelled on the basis of non-use, with the only remaining protected goods being “Energy drinks”. The Applicant applied for the designation to be declared invalid for these remaining goods on the basis that the mark was misleading.
The Applicant argued that the mark would mislead the relevant English-speaking consumer into thinking that the extraordinary qualities and characteristics of the Red Bull energy drink are capable of ‘giving him/her wings’.. He argued that this misleading message is reinforced by Red Bull’s marketing campaigns, where a man drinking the energy drink is shown with wings and in the act of flying.
The Applicant also recognised that the English-speaking public will probably interpret the mark as a metaphor, conveying the idea that the energy drinks have a positive effect on the performance, physical and mental capacities of those who consume them. The Applicant argued that on this interpretation of the mark it still conveys a fraudulent and misleading message. The Applicant claimed that it has been scientifically proven that energy drinks do not have beneficial effects on consumers, but rather the reverse. He submitted reports and articles about the detrimental effects of ‘energy drinks’ as evidence.
Red Bull, unsurprisingly, argued that there is no risk of the public being misled, since the average consumer “is aware that humans have no wings and that there is no drink or any other treatment that would allow wings to grow’’. They argued that their mark was not a health claim but was actually a humorous and exaggerated slogan. They claimed that the mark might, at most, be perceived as being vaguely allusive, in the sense that the product enhances the consumers’ performance. They were careful to clarify that this “allusiveness” was not sufficient to establish any type of descriptiveness or any deception. Red Bull also submitted evidence to show that the ingredients contained in energy drinks have beneficial effects on their consumers, in relation to their attentiveness and cognitive capacities.
The EUIPO Cancellation Division agreed with Red Bull that it was unrealistic to claim that a consumer would be misled into thinking that the mark literally describes the effect or purpose of the goods, being that of growing wings. Since this effect is materially impossible, the Cancellation Division considered it unlikely that any consumer would interpret the mark in this way,
The Cancellation Division held that the mark would be perceived as a slogan, conveying the message that the product makes ‘someone feel light, energetic or even happy and positive’. They considered that this was not deceptive, since energy drinks are generally known to possess such qualities. They acknowledged that the Applicant had questioned the qualities generally associated with energy drinks and had tried to bring evidence of to show that they are dangerous. The Cancellation Division stated that the qualities of energy drinks were out of the scope of the cancellation action and stressed that the EUTMR is not the adequate legal basis to question the quality of such products.
The Cancellation Division found that the mark “GIVES YOU WINGS” is, at most, evocative of characteristics proper to energy drinks and is not deceptive. The application for a declaration of invalidity was refused and the Applicant was ordered to pay costs.
Interestingly, some years back in the USA, Red Bull had agreed to settle a lawsuit involving the slogan “Red Bull gives you wings“. This was a false advertising law suit, not a challenge to a trade mark, but again the basis of the claim was that the slogan was dishonest and misleading.
Many news reports at the time suggested that the claimant in the US, Benjamin Careathers, had brought the claim after being disappointed by his failure to grow wings in spite of regularly drinking Red Bull. Rather disappointingly, this was not the case. Instead, his claim was that the slogan is generally understood to mean that the drink should give a higher energy boost than an average cup of coffee. When he found that Red Bull actually had less caffeine than a large cup of coffee, he brought a class action lawsuit in 2013.
“Such deceptive conduct and practices mean that [Red Bull’s] advertising and marketing is not just ‘puffery,’ but is instead deceptive and fraudulent and it therefore actionable,” the lawsuit stated, continuing: “Even though there is a lack of genuine scientific support for a claim that Red Bull branded energy drinks provide any more benefit to a consumer than a cup of coffee, the Red Bull defendants persistently and pervasively market their product as a superior source of ‘energy’ worthy of a premium price over a cup of coffee or other sources of caffeine” .
As reported in a statement issued to Bevnet (a magazine and website aimed at the beverage industry) and published on 5 August 2014, Red Bull settled the lawsuit “to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labelling have always been truthful and accurate, and denies any and all wrongdoing or liability.”
Prior to March 2015, any U.S. resident who had purchased Red Bull products between 1 January 2002 and 3 October 2014 could claim compensation of either $10 cash or $15 worth of Red Bull products. The total compensation was estimated to be over US$13 million. That’s not enough to clip Red Bull’s wings, though – in 2024 they sold 2.670 billion cans worldwide and achieved a record turnover of €11,227 billion (over £9,500 billion).
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
