'Passing off' energy drinks could lead to court action

Licensees passing off energy drinks as Red Bull could find themselves facing court action.

The warning comes after the owners of Red Bull were granted a temporary order preventing 12 pubs and bars in Edinburgh, Stirling and Aberdeen from "switch selling".

The premises were all believed to be passing off another brand of energy drink to customers who had requested Red Bull - without them being informed.

Despite the fact that only 12 pubs and bars were involved the decision is likely to have an effect on licensed premises across Scotland, and potentially the rest of the UK.

Lawyers Burness, representing Red Bull, said that on 36 occasions between March 31 and July 1, 2005, investigators visited a number of licensed premises and ordered a vodka with Red Bull.

On 23 of these occasions, the barstaff provided the investigator with a vodka and another drink called Shark, without telling the investigator that the drink being supplied was not Red Bull.

If the venues involved switch sell again they will face contempt of court proceedings.

The defendants, who have not been named, were represented at a court hearing on August 11 and after some discussion on the court steps, Red Bull was given a court undertaking which prevents the defendants from switch selling in future.

Colin Hulme, an associate at Burness, said: "The Red Bull name and drink are highly distinctive. Over the last five years, the company has spent millions of pounds on advertising in the UK. As a result of this continued and substantial investment, the name is one of the leading drinks brands throughout Scotland and the rest of the UK.

"Red Bull is determined to protect its investment in its valuable brand. The name is not generic, it is associated with the Red Bull drink to the exclusion of any others."

Mr Hulme said that due to the low lighting levels in many licensed premises, a customer was less likely to be aware that the bar was not serving Red Bull.

Alan Clarke, Red Bull on-trade director, said: "This victory has reiterated our concern that 'passing off' is a serious issue - and one we don't take lightly. We will continue to take the appropriate action on any further cases off 'passing off', in order to protect our consumers, as well as the Red Bull brand."

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