Recently, the China National Intellectual Property Administration (CNIPA) issued a ruling rejecting a request by Red Bull Vitamin Beverage Co., Ltd. (hereinafter referred to as Beijing Red Bull) to invalidate the trademark for 'Red Bull REDBULL' (three-dimensional trademark) under No. 11460102. It is understood that this is not the first time Beijing Red Bull has challenged the trademark rights of TCP Group (TCP), and all previous attempts, including this one, have failed.

Upon reviewing the detailed documents, it was found that this trademark is a three-dimensional trademark combining the Red Bull logo and the gold can. In short, the dispute is over who has the right to use the current gold can Red Bull trademark and packaging. This CNIPA ruling confirms that TCP Group is the undisputed owner of the 'Red Bull' gold can packaging and trademark, and has the legal right to use the series of trademarks.

-01- How did CNIPA determine the ownership of the Red Bull gold can packaging rights?

The core demand of Beijing Red Bull was that trademark No. 11460102 infringed upon its prior rights to the unique packaging and decoration of a well-known product, and requested the invalidation of this trademark.

Trademark No. 11460102 'Red Bull REDBULL' (three-dimensional trademark)

The image above is the disputed trademark in this case. Beijing Red Bull argued that this trademark was a preemptive registration by TCP of a trademark that Beijing Red Bull had used first and had certain influence.

In this case, Beijing Red Bull provided evidence including a design patent certificate for the Red Bull product, invoices and contracts for newspaper advertisements used earlier, and a civil judgment made by the Guangdong Provincial Higher People's Court in 2008, which confirmed that Beijing Red Bull enjoyed packaging and decoration rights. This judgment was from 2008, while TCP's trademark license agreement with Beijing Red Bull expired in 2016. You can think about the implications.

Ultimately, CNIPA ruled that the design patent certificate provided by Beijing Red Bull does not in itself create the right to the unique packaging and decoration of a well-known product. Furthermore, the evidence of use submitted by Beijing Red Bull should be regarded as evidence of use as a trademark licensee. The reason it previously (during the license period) received support for its packaging and decoration rights was based on the authorization from TCP and TCP's authorization for Beijing Red Bull to handle all litigation matters regarding infringement of Red Bull's legal rights in China. Therefore, Beijing Red Bull's request was not supported.

In simple terms, Beijing Red Bull was able to use the gold can trademark during the license period because of TCP's authorization. The packaging and decoration rights it previously enjoyed were also based on TCP's license.

So, who has the legal right to use the Red Bull logo and gold can packaging is clear: it is the rights holder, TCP. This is the biggest difference between the Red Bull case and the JDB/Wanglaoji case. Many people previously speculated whether the Red Bull dispute would become the next JDB/Wanglaoji dispute, but now there is no need to worry. JDB and Wanglaoji fought over the use of the red can appearance, so after the packaging and decoration rights were shared, we saw both red can Wanglaoji and red can JDB in the market.

For Red Bull, many competitors use gold cans, which does not affect it. The core is the combined image of the two bulls graphic and the gold can body, which are the two soul symbols.

So, the actual controller behind Beijing Red Bull does not want a gold can Warhorse; they want to continue operating the gold can Red Bull.

-02- Three gold can Red Bulls coexist: Who protects the exclusive right to use the trademark?

In October 2016, TCP's trademark license agreement with Beijing Red Bull expired and was not renewed. In September 2018, the business term of Beijing Red Bull's joint venture registration also expired. However, the Hua Bin Group behind Beijing Red Bull has never stopped producing and selling Red Bull products. According to the contract and relevant laws, TCP believes that Hua Bin has infringed its exclusive right to use the trademark, and has filed trademark infringement lawsuits against Beijing Red Bull and several other Hua Bin-owned production and sales companies outside the system. During this period, TCP repeatedly called on Hua Bin to stop producing and selling Red Bull products.

At the market level, Hua Bin Group launched a similar product, Warhorse, as a backup, but never stopped producing and selling Red Bull for profit. At the legal level, Hua Bin used Beijing Red Bull and its Red Bull factories to file counterclaims against TCP, only to withdraw them before trial, and created various cases within cases to delay and undermine TCP's earlier trademark infringement lawsuits, resulting in the Red Bull trademark infringement case still not having a final result.

Starting in June 2019, TCP Group, together with new local partners Guangzhou Yaoneng Beverage Co., Ltd. (Guangzhou Yaoneng) and Pusheng Food Sales Co., Ltd. (Pusheng), launched Red Bull Anji and Red Bull Vitamin Flavored Beverage in the Chinese market, beginning a direct confrontation with Hua Bin Group. This created the current situation of three Red Bulls coexisting in the market.

Among them, TCP Group's Red Bull Anji and Red Bull Vitamin Flavored Beverage are new products. Although these two products have been on the market for a short time, relying on TCP Group's strong brand endorsement and Pusheng's familiarity with Red Bull's playbook, they have formed a full-coverage distributor team and distribution network channels including top e-commerce platforms.

Their characteristics are: full coverage of online and offline channels, while accelerating the layout of emerging e-commerce to quickly capture the market. The secret is speed and precision. Although launched recently, the new Red Bull is very competitive, with sales exceeding 1 billion yuan in half a year.

Compared to TCP's aggressive moves, Hua Bin's pace is gradually slowing down. At the product level, after the Red Bull trademark license agreement expired in 2016, TCP stopped supplying raw materials, and industry insiders later noticed that the taste of the old Red Bull became lighter. Without a trademark license and with changed raw materials, is the old Red Bull still the original Red Bull?

At the market level, due to the uncertainty of the Red Bull trademark, Hua Bin has not dared to make large investments in Red Bull promotion, instead diverting almost all resources to other brands it operates. At the legal level, as related cases are decided one by one, TCP's status as the owner of the 'Red Bull' trademark is further consolidated, and pressure on Hua Bin is increasing.

Currently, TCP is carrying out a series of rights protection actions across the country, and Hua Bin faces continuous complaints from TCP as the trademark owner about its infringing products. At the same time, the old Red Bull faces risks of team instability and key regions being seized by the new Red Bull, making it somewhat overwhelmed.

With this CNIPA confirmation of the Red Bull gold can trademark, it is again proven that only TCP is the sole owner of the Red Bull brand and gold can packaging. Currently, the only legally authorized gold can Red Bull products in the Chinese market are Red Bull Anji and Red Bull Vitamin Flavored Beverage.

As for Beijing Red Bull controlled by Hua Bin Group, after both the license contract and joint venture term expired, neither Beijing Red Bull nor Hua Bin Group has the legal right to use the Red Bull trademark and gold can packaging. Therefore, the current tactic of frequent lawsuits is their only bargaining chip.

With three Red Bulls coexisting, consumers' right to know should also include the right to know trademark licensing information. Because most consumers make purchasing decisions based on recognition of a brand's value. When a trademark owner protects its exclusive right to use the trademark, it is also protecting the legitimate rights and interests of consumers.

-03- The situation is becoming clearer: The two sides react in completely opposite ways

Recently, Hua Bin Group announced its semi-annual results. Red Bull remains the largest contributor to Hua Bin's FMCG performance, accounting for over 93% of its performance. In addition, Warhorse, which it has strongly supported, still has mediocre performance after three years of development.

However, judging from its actions, Hua Bin's determination to support Warhorse has not diminished. In the first half of this year, it increased market expansion efforts for Warhorse, not only with significant investment in esports events and sports marketing, but also reportedly all support fees for distributors are used for Warhorse. In contrast, looking at its recent activities, Hua Bin's actions regarding Red Bull are more about telling stories and reminiscing about the past, such as commemorating the 25th anniversary, with few substantive actions.

In contrast, TCP is gradually deepening its confidence and determination to explore the Chinese market, with the successive victories in Red Bull trademark disputes, the successful launch of two new products, good distribution results, and stable operations of domestic partners.

On May 19, TCP Group announced that it will invest a total of 1.06 billion yuan in its China operations over the next three years. This includes deepening strategic partnerships with Chinese partners, establishing new representative offices in China, building domestic teams, expanding new production bases, and launching more new products from the group.

It is understood that TCP Group has decided to build a new production factory in Huairou District, Beijing, as part of its investment plan. Beijing Red Bull, controlled by Hua Bin, is located in Huairou.

Building a new factory deep in Hua Bin's territory is quite thought-provoking. During the trademark license period, the joint venture Beijing Red Bull in Huairou, Beijing, was the only entity authorized by TCP to use the Red Bull trademark.

At the same time, since the establishment of Beijing Red Bull, TCP has always been its controlling shareholder. However, after the license period and joint venture term expired, starting in the second half of 2018, news of 'factory shutdown' frequently emerged from Beijing Red Bull. According to informed sources, Beijing Red Bull actually stopped production in July last year. The Hua Bin Red Bull products sold in the Beijing market are now only produced in Yixing, Jiangsu.

-04- A tenant is always a tenant

All signs indicate that TCP Group is currently making steady progress, paving the way for the long-term development of Red Bull in China, and the future is promising. Hua Bin Group, on the other hand, is still obsessed with past glory. The more it tries to hold on to Red Bull, the more counterproductive it seems, and its various maneuvers are astonishing.

Whether it is the Red Bull series trademark ownership case (where Beijing Red Bull's specific claims included requesting the court to confirm its ownership of the 'Red Bull series trademarks' and payment of advertising expenses) that was dismissed by the Beijing High Court at the end of last year, or the request to invalidate the Red Bull gold can three-dimensional trademark that was rejected by CNIPA this time, both undoubtedly further confirm TCP's independent and complete ownership of the Red Bull series trademarks (including the gold can three-dimensional trademark).

Hua Bin's actions have been ridiculed by netizens as 'renting a house for 20 years and thinking the house is yours, and even wanting the landlord to put your name on the property deed.' This request to invalidate the trademark is even more like a 'tearing up the property deed.' One can imagine its inner thoughts: although the lease has expired, the house is still occupied by me; if I destroy your property deed, won't the house eventually be mine? However, the CNIPA ruling is tantamount to telling the public that 'a tenant is always a tenant.'

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