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bullish decision by ECJ on trade mark infringements

16 December 2011

The ECJ ruling in Frisdranken Industrie Winters BV v Red Bull GmbH may make it harder to enforce trade mark rights against “behind the scenes” service providers who participate in the production of infringing goods.

Winters, a Dutch company, filled cans branded with names like “Bullfighter” and “Pitbull” with soft drink mix. The cans were produced by Smart Drinks, who then sold the finished products. As Smart Drinks were registered in the British Virgin Islands, Red Bull sued Winter for infringement of its Benelux trade mark.

The ECJ ruled that service providers would not infringe trade marks when executing a technical part of the production process of the final product where they had no interest in their external presentation. Winter created the technical conditions for Smart Drinks to use the products, but did not use the products themselves.

This position is likely to be controversial. The European Commission noted that this may allow producers to avoid enforcement by dividing the production process amongst such service providers.

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