On 29 July 2019, the Court of Justice of the European Union
(“CJEU”) rejected the appeal filed by Red Bull GmbH
(“Red Bull”) against the judgment of the European
General Court (“EGC”) of 30 November 2017,
upholding the finding that the colour combination blue/silver as
filed was not eligible for protection as a Community trade mark
[CTM – now: European Union trade mark (EUTM)] (Case C-124/18
P).
As background, in 2005 and 2011, respectively, two CTMs (now EUTMs)
for the blue/silver colour combination for energy drinks in Class
32 were registered in the name of Red Bull on the basis of
distinctive character acquired through use. The first mark’s
description read “Protection is claimed for the colours blue
(RAL 5002) and silver (RAL 9006). The ratio of the colours is
approximately 50%-50%.”, while the second mark included the
description that “the two colours will be applied
