Lions and lawsuits and bulls, oh my

Red Bull GmbH v. RLED, LLC, 515 F.Supp.2d 641 (M.D.N.C. 2007)

Red Bull has copyright registrations on two versions of the “Red Bull Product Statement”:

RED BULL Energy Drink • Improves performance especially during times of increased stress or strain • increases endurance • improves concentration and increases reaction speed • stimulates the metabolism and helps to eliminate waste substances from the body. Red Bull's effects have been recognized by professional athletes, stressed students, busy managers, and long distance drivers around the world. Not recommended for children.

RED BULL Energy Drink • Improves performance, especially during times of increased stress or strain • increases endurance • increases concentration and improves reaction speed • stimulates the metabolism.

Defendants make Roaring Lion energy drink. A job ad they placed stated that Roaring Lion was founded by original Red Bull staff who took the recipe and started their own company. Defendants' website states that Roaring Lion:

† Increases performance, especially during times of stress or strain

† Improves endurance

† Improves concentration and reaction speed

† Activates the metabolism

The bottle label says the same things, with the last two switched and using “increased stress” instead of just “stressed.”

The Roaring Lion website also contains metadata including the words “red bull.” Visible portions of the site claim that Roaring Lion has the same ingredients in the same quantities as Red Bull and that Roaring Lion provides the same benefits.

The court declined to dismiss Red Bull’s copyright infringement claims on a motion to dismiss, because Roaring Lion’s fair use defense – that it is fair use to quote a competitor’s product claims in a comparative advertising campaign -- is an affirmative defense that may be raised on a motion to dismiss only if it appears on the face of the complaint, and a fair use defense is by its nature fact-specific. Does that mean if Red Bull sues me for reporting on the case, we have to go to summary judgment? I would hope not.

I have screen captures of the European Roaring Lion website and a Red Bull site; it seems to me that a legitimate factual issue is whether it’s fair to describe Roaring Lion’s use as comparative, rather than just copying, so I don’t think the court’s result was wrong on this issue. But if Roaring Lion were to say, “Red Bull claims ‘X,’ and we can deliver the same benefits,” I would hope a court would say that was fair use as a matter of law.

Other questions go to the very tiny size of the work at issue and the possibility of merger of idea and expression, especially given that Roaring Lion did change order and verbs.

Red Bull also sued for state and federal false advertising and unfair competition/passing off, including unfair competition for using the Red Bull name in website metadata. Again, the court refused to dismiss the metadata claim, despite defendants’ argument that they were engaging in mere nominative/referential use. The court refused to dismiss this portion of the case because Red Bull had alleged that the use causes likely confusion. (Of course, metadata use that isn't coupled with confusing website content doesn’t cause likely confusion, but that’s not really a matter for a motion to dismiss.) Perhaps trademark use would have been a better defense, since that is a matter of law, at least in the Second Circuit.