In March 2014, the Appellate Court of Tirana upheld the decision of the First Instance Court of Tirana in Red Bull’s trade dress lawsuit against the Albanian energy drink producer Arseni. This decision is now under appeal with the Supreme Court of Tirana.
In June 2012, Red Bull initiated a court proceeding on the ground that the defendant’s product design constituted an infringement of the plaintiff’s well-known trademark, as well as an act of unfair competition.
The Appellate Court upheld the reasoning of the First Instance Court, where various IP-related issues rarely heard and decided on by the Albanian courts were addressed during the proceedings, and answered in line with the CJEU’s rulings.
One of the issues that the courts looked into was the criteria for determining what constitutes a well-known mark and whether Red Bull marks are well known in Albania.
After carefully analyzing the evidence submitted by Red Bull showing that 97 percent of the Albanian public recognized the Red Bull Energy Drink mark, both courts acknowledged the well-known status of Red Bull marks in Albania, pointing out that this percentage is extremely high and that the marks have therefore attained sufficient awareness in order to pass the threshold of being well known.
The courts further stated that the blue/silver color combination and the trapezoid-like graphic solution is one of the most distinctive characteristics of Red Bull marks and that the marks have acquired distinctiveness through the extensive use in the Albanian market.
Another interesting ruling the courts rendered was the one related to common situations that involve with well-known marks, such as taking unfair advantage and being detrimental to the distinctive character of the mark or its reputation. After concluding that the Albanian legislation has fully transposed the Council Directive 89/104/EEC of 21 December 1988 as well as the CJEU rulings put forward by the plaintiff, the Appellate Court confirmed that the CJEU rulings constitute an important guideline the Albanian authorities should follow.
Also, both courts satisfied the plaintiff’s unfair competition claim and ruled that the similarities in the packaging of the products, e.g. the size and shape, can be taken into account while estimating the confusion in the course of trade.
It is an interesting ruling, taking into account the total lack of the Albanian case law on unfair competition, and trade dress in particular. It should be noted that there is no legal definition of trade dress in the Albanian law; however, the trademark law and the unfair competition law provide legal basis for protection against copycat packaging or trade dress infringement, as both courts stated.
As the case law related to the enforcement of trademark rights is very limited in Albania, Red Bull’s recent win against the local importer is encouraging news for trademarks owners seeking to enforce their rights in Albania. The courts also showed willingness to follow the CJEU criteria, finding them to be an important guideline for the Albanian practice.
Even though the decisions of the First and the Appellate Court do not create judicial precedents in Albania, this particular decision is of great importance, as it paves the way for further consideration of the CJEU’s rulings by the Supreme Court.
