The 26th of October was a special day for The Bulldog: we were able to celebrate another legal victory against Red Bull. Earlier we’d taken the Austrian energy drink giant to trial, demanding damages for not being able to put our own energy drink on the market.
Since we knew that it can take very long for a damages trial to conclude, we needed to make sure we could receive the 49 million euros from Red Bull, with the seizure of the company’s assets. Red Bull didn’t agree to that and challenged us in court to put an end to the seizure. However, on October 26th the judge in Amsterdam ruled in favour of The Bulldog and acknowledged that our seizure was justified.
With this recent court ruling we’re one step closer to receiving compensation for the revenues we had to miss out on for so long. It means that we are entering the final chapter, after nearly 20 years of legal battles with Red Bull.
You of course know us for our world famous coffeeshops in Amsterdam, as well as our bars and hotels around the world. But that’s not all. Chances are you don’t know it yet, but we had our very own energy drink: The Bulldog Energy Drink. We introduced our drink in the late 90s. Back in the day it sold well. So, we bet you wonder why it never became as big as so many other energy drinks.
The reason for that lies with the biggest and without a doubt best known of all energy drink brands: Red Bull. In 2003, they decided that The Bulldog Energy Drink showed too many similarities to their own brand name and demanded us to stop selling it, because they feared that the “bull” in our name and our company’s colours on the can would confuse customers who were looking for a can of Red Bull or would take wrongful advantage of the repute of Red Bull. And Red Bull believed they were in their right, since they registered their brand name for selling non-alcoholic drinks before us – even though we did so only 3 days later in 1983!
Red Bull’s demand for us to stop selling our energy drink was rejected by the district court in Amsterdam in 2007. Red Bull however appealed and the case was reassessed by the court of appeals in Amsterdam. During this time, Red Bull also started looking for other ways to try and force The Bulldog energy drink out of the market. As you would expect of us, The Bulldog didn’t just roll over and concede defeat.
Three years after winning our first round in court, The Bulldog suffered a major blow in 2010 when the court of appeals in Amsterdam annulled the decision of the district court and ruled in favour of Red Bull’s claim that The Bulldog Energy Drinks were infringing the intellectual property rights of Red Bull. Of course we didn’t agree and we brought the case before the Supreme Court of the Netherlands.
We knew we had a strong case: our company and name were alive and kicking years before Red Bull was founded and especially our coffeeshops were already well known all over the world. On top of that, it’s not an odd thing to do for a company in the hospitality industry like us to produce and sell its own drinks with the brand name on it. So would customers really confuse or associate a can of The Bulldog Energy Drink with a can of Red Bull? We know you wouldn’t, nor would anyone else with enough common sense.
That’s what we argued when we took the fight all the way to the Supreme Court of the Netherlands. The Supreme Court in turn took it even further and presented the case to the European Court of Justice in Luxemburg to provide an explanation. Unfortunately, this also meant that it would take years until a final decision could be made. And the previous ruling was still valid while the court was considering our appeal, so we weren’t allowed to sell our energy drink since 2010.
Since its introduction, our energy drink was facing severe opposition by Red Bull, with even a complete ban on the marketing of The Bulldog Energy Drink as from 2010. In the meantime we saw how energy drinks got more popular by the day and various brands like Monster, Rockstar, Bullit and of course Red Bull became million dollar companies because of it. All the while, all we could do was wait and hope for the European Court of Justice to decide in our favour.
And one memorable Thursday, it finally happened. On February 6th 2014, the European Court of Justice ruled in favour of The Bulldog, stating:
“In the present case, it is not disputed that [The Bulldog] uses the sign ‘The Bulldog’ in relation to hotel, restaurant and café goods and services which include the sale of drinks. Consequently, in the light of the recognition enjoyed by that sign among the relevant public, and in the light of the nature of the goods and services for which it has been used, the sale of energy drinks contained in packaging which displays that sign may therefore be perceived, not as an attempt to take advantage of the repute of the mark ‘Red Bull’, but rather as a genuine extension of the range of goods and services offered by [The Bulldog].”
This judgement forced the Supreme Court of the Netherlands to annul the decision of the court of appeals in Amsterdam of 2 February 2010 and it referred the case to the court of appeals in The Hague for a final ruling on the merits of the case.
As we hoped, the judges in the court of appeals in The Hague considered that, in this case, the element “bull” alone isn’t enough to confuse people or to take advantage of Red Bull, as it makes up just a part of two very different brand names. Also the logos and the brand colours used on the can are clearly different from each other according to the court of appeals, which is easy to understand, since even with a huge amount of imagination (or after a long visit to our coffeeshop) it’s hard to mistake a bulldog for a bull.
Aside from these important reasons, it was Red Bull itself that nudged the judges towards their final decision. The Supreme Court looked into the case of Bullit, which is a major energy drink manufacturer and a daughter company of Red Bull. You’ve probably guessed it. Having a daughter company with “bull” in its name that sells a similar product, while you’re accusing a company of trademark violations for that very reason, appeared not to look well in the eyes of the Supreme Court, which ruled that the court of appeals in Amsterdam had wrongly ignored our arguments.
With the court’s ruling safely tucked in our pocket we were at last allowed to sell our energy drink again. However, by this time the international market for energy drinks had settled and there appeared no basis for a successful roll out of a The Bulldog Energy Drink.
If you remember the beginning of this article, you’ll know that the bullfight didn’t end there. Because we were unjustly prevented from selling our energy drink for so long by Red Bull, we deserved compensation for the potential revenue The Bulldog missed out on.
According to extensive market research, the damages suffered by The Bulldog for not being allowed to sell our energy drink during many years amounted to more than 300 million euros in a best case scenario. Financial experts of Sman Business Value in Amsterdam concluded in its report that the average damages for The Bulldog amounted to at least 49 million euros. We provided Red Bull with a copy of the Sman report in July 2022, but received no response on the content of the claim. This was in line with Red Bull’s constant attitude towards us, ignoring the claim of damages which was presented already several times in the years before.
Due to Red Bull not responding to any invitation of The Bulldog to enter into discussions on the claim of damages that resulted from the wrongful enforcement of the decisions of the court of appeals in Amsterdam of 2 February 2010, we were forced to initiate legal proceedings against Red Bull.
Because of the enormity of the claim and its importance for The Bulldog, we needed to be sure that we would receive the money in the end, even if Red Bull’s financial position had worsened before the court’s final call. And that may sound unrealistic, but a damages claim can take a long time and anything can happen in the meantime, even to a successful company as Red Bull. In order to secure our position we seized the assets of Red Bull with consent of the court in Amsterdam.
The response by Red Bull came quickly. They challenged the seizure by arguing that the seizure was carried out by the wrong branch of The Bulldog, because it didn’t suffer from the ban according to them. Red Bull added that the seizure would have a negative effect on their cash flow and that it wasn’t even necessary to seize their assets, because they would be more than capable to pay the damages to The Bulldog.
The Amsterdam court however, in its judgement of October 26th 2022, didn’t see it that way and denied Red Bull’s claim to lift the attachments. According to the judge, the seizure by The Bulldog was justified, even for such a large sum. As a result of this decision the seizure remained in place and the only way for Red Bull to force the lifting of the seizure would be to provide The Bulldog with a bank guarantee for the estimated amount of damages of 49 million euros.
On November 9th 2022 the proceedings on the merits of the case started before the district court in Amsterdam. The Bulldog is ready for the final round against Red Bull and we’re confident that justice will be done and that we will be allowed a fair and reasonable compensation for Red Bull unlawfully cutting off our The Bulldog Energy Drink project in the period 2010 – 2017.
