Public Version of Initial Determination of Summary Determination for Red Bull
ALJ Luckern found that Red Bull GmbH and Red Bull North America, Inc. (“Red Bull”) satisfied the technical and economic prongs of the domestic industry requirement. The Red Bull energy drinks distributed in the U.S. featured registered trademarks, copyrights, and derivative works owned by Red Bull. Further, it was determined that Red Bull had expended significant investments facilities and equipment, significant employment of labor and capital, and significant exploitation investments. ALJ Luckern’s decision factored in, among other things, Red Bull’s warehouse and storage space housing Red Bull energy drinks, marketing and point-of-sale materials and event logistics infrastructure inventory, Red Bull’s expenditures on corporate and promotional vehicles, Red Bull’s contracts with U.S.-based third party manufactures, and Red Bull’s large workforce involved in the licensing, enforcement, marketing and promoting of Red Bull energy drinks.
ALJ Luckern found that the unauthorized importation of gray market products violated the Lanham for all remaining Respondents except one (where ALJ Luckern found the evidence of importation lacking because it evidenced an offer for sale not a sale). ALJ Luckern found that material differences existed between U.S. authorized products and unauthorized gray market products. Such differences included a lack of batch code, expiration date, UPC code, nutritional information, volumetric information, deposit information, proper complaint contact information, and other quality control mechanisms.
ALJ Luckern further found that the importation of the unauthorized Red Bull energy drinks constituted copyright infringement in violation of 19 U.S.C. §1337.
ALJ Luckern also recommended the entry of a general exclusion order and posting of 100% bond should any Respondent continue to import and support the gray market products through any Presidential review period. (PDF)
