By Eric Schweibenz
On May 15, 2009, Red Bull GmbH of Austria and Red Bull North America, Inc. of Santa Monica, California (collectively, “Red Bull”) filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

According to the complaint, the following proposed respondents unlawfully import into the U.S., sell for importation, and sell and distribute within the U.S after importation gray market energy drink products which are materially different from Red Bull’s energy drink:

  • Chicago Import Inc. of Chicago, Illinois;

  • Lamont Dist., Inc. a/k/a Lamont Distributors Inc. of Brooklyn, New York;

  • India Imports, Inc., a/k/a International Wholesale Club of Metairie, Louisiana;

  • Washington Food and Supply of D.C., Inc. a/k/a Washington Cash & Carry;

  • Vending Plus, Inc. of Glen Burnie, Maryland; and

  • Baltimore Beverage Co. of Glen Burnie, Maryland.

Red Bull asserts that these proposed respondents have violated Section 337 by infringing Red Bull U.S. Trademark Reg. Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607, as well as Red Bull Copyright Reg. No. VA0001410959.  Specifically, Red Bull alleges in the complaint that the proposed respondents’ gray market energy drink products may have “different languages on the cans, omitted or different nutritional information and other unfamiliar wording on the cans, shoddy and inferior overlabeling on the cans, different local distributor contact information (e.g., a Dubai address rather than the U.S. California address), and a different overall image than U.S. Red Bull Energy Drink products.”  Red Bull also charges that those handling the proposed respondents’ gray market energy drink products outside of the authorized distribution channels are not subject to quality control standards required for Red Bull energy drink products.  Moreover, according to the complaint, the distribution of the proposed respondents’ energy drink products “causes or is likely to cause purchaser or consumer confusion, mistake, and/or deception to the detriment of Red Bull, as well as to the detriment of consumers and purchasers in the United States.”

Red Bull claims that its success in the U.S. is related to the “adoption of distinctive and eye-catching trademarks and trade dress for the U.S. Red Bull Energy Drink products, which are prominently featured in Red Bull’s marketing, advertising, and promotional activities.”  Specifically, Red Bull asserts in its complaint that it has expended over two billion dollars on advertising, marketing, and promoting its products and its intellectual property in the U.S., including promoting sports, cultural and other programs.  Moreover, in 2008, Red Bull sold over 1.3 billion units of its energy drink in the U.S.

Red Bull alleges that it satisfies the domestic industry requirement based on its significant investment in plant and equipment, significant employment of labor, and significant investment in the research and exploitation of the asserted Red Bull trademarks and copyright.

Regarding potential remedy, Red Bull seeks a general exclusion order and permanent cease and desist orders against the gray market Red Bull energy drinks.