Australian energy drink company, Red Bull, is suing Capitol Cash & Carry, a wholesale company, over the alleged importation of gray market goods.
Red Bull filed a trademark infringement suit on Apirl 27, at the U.S. District Court for the District of Columbia, accusing Capitol of importing Red Bull cans into the U.S. that were intended for sale in South Africa.
According to the Complaint, the cans are not authorized for sale in the U.S. and are noticeably different in appearance.
19. The Gray Market Red Bull Energy Drink intended for sale in South Africa, which Capitol sells within the United States, is materially different in many respects from the product authorized for sale in the United States. For example, the South African Red Bull Energy Drink:
a. Does not travel through authorized supply chains and is therefore not subject to Red Bull’s quality control standards such as transporting the Red Bull Products in climate controlled containers or in a manner that ensures the cans do not get dents and nicks which may result in a can that looks to be an inferior product and may also result in leakage or a loss of carbonation;
b. Does not contain the adequate UPC Code to track the product in case of a recall;
c. Presents nutrition information in a manner that does not comply with FDA requirements;
d. Is missing beverage container deposit information required by several U.S. states;
e. Includes variation on English spelling that is different from American English, such as “colour” versus “color”, which American consumers are unfamiliar with;
f. Presents the expiration date in a manner U.S. consumers are not familiar with, i.e., DD-MM-YYYY, and which may not allow the consumer to determine the correct expiration date of the product;
g. Presents volume and nutrition information using the metric system instead of the standard system of measurement that U.S. consumers recognize; and
h. Directs consumers to Red Bull’s South African website instead of its American website and is missing the United States toll-free number for consumers to contact Red Bull in case of questions or concerns
Red Bull claims that Capitol’s acts are likely to injure Red Bull’s image and reputation with consumers in the United States by creating confusion about, and dissatisfaction with, the Red Bull Energy Drink.
On information and belief, Capitol’s sale, offering for sale, distribution, and/or advertising of Gray Market Red Bull Energy Drink in the United States have been committed deliberately and willfully, with knowledge of Red Bull’s exclusive rights and goodwill in the RED BULL Marks and with a bad faith intent to cause confusion and trade on Red Bull’s goodwill, the complaint states.
It said: “Without Red Bull’s consent, Capitol has used the Red Bull trademarks in commerce in connection with the sale, offering for sale, distribution, and/or advertising of Grey Market Red Bull Energy Drink.”
Red Bull is seeking an order enjoining Capitol Cash & Carry from selling the goods, along with an account of profits and reasonable fees.
Case Name: RED BULL GMBH et al v. CAPITOL CASH & CARRY
Case Number: 1:18-cv-01003
Court: District Of Columbia