Bull vs. Beer; Austria vs. Virginia.

Sesame Street, a children's program on Public Broadcasting (PBS), has long run a short teaching skit and jingle called, "One of these things is not like the others." Children are gently challenged to discover which one item in a small group of items is dissimilar, and to explain why.

One of these things is not like the others,
One of these things just doesn't belong,
Can you tell which thing is not like the others
By the time I finish my song?

Playing the game, can you identify which of these logos of three different companies is NOT like the other two?

Clockwise, from left:

• logo for Red Bull GmbH;
  
• logo for Old Ox Brewery;
  
• logo for Merrill Lynch Wealth Management.

Apparently, the adults at Red Bull cannot.

Last year, the Austrian beverage behemoth filed a trademark complaint with the U.S. Patent and Trademark Office against a small start-up Ashburn, Virginia, 'craft' brewery, Old Ox Brewery, for perceived consumer confusion over the name and logo of its energy drink versus the brewery's logo.

From the interwebs:

Would consumers of the energy drink Red Bull think the company has entered the beer market, if they came in contact with Virginia’s Old Ox Brewery? Attorneys for the extreme drink certainly think so, and have filed a complaint in the United States Patent and Trademark Office. The filing can be found here.

Red Bull says Old Ox Brewery infringes upon its registered trademark. In it, attorneys for the energy drink assert some consumers might confuse the brands because “an ‘ox’ and a ‘bull’ both fall within the same class of ‘bovine’ animals and are virtually indistinguishable to most consumers. In addition, an ox is a castrated bull.”

— All About Beer, 9 February 2015.

Red Bull demanded that the brewery stop using the colors silver, red, or blue, and avoid depicting 'bovine' creatures. The brewery president, Chris Burns, exasperated at the lack of progress in negotiations, sent Red Bull a snarky response. He made the letter public, and it quickly went 'viral' on social media.

Hey Red Bull –

You seem pretty cool. You sponsor snowboarders, adventure racers, rock climbers and motocross bikers. You launch people into space so that they can skydive back down to earth. That’s all really darn cool. For all I know, you’re reading this while strapping yourself into a Formula One racecar that is about to be lit on fire and jumped over a large chasm of some sort. How cool would that be? Feel free to give it a try.

Here’s the thing, though. You are being extremely uncool to us at Old Ox Brewery. We are a small startup brewery in Ashburn, Virginia. We’re family-run, we love beer, and we love our community. For reasons that we cannot understand, you have attempted to strong arm us into changing our identity for the last 10 months because you believe folks might mistake Old Ox beer for Red Bull energy drinks. We respectfully disagree. The only similarity between our two products is that they are both liquids. You make non-alcoholic (but very extreme) energy drinks. We make delicious (but laid-back) beer. Our consumers are looking for two distinctly different experiences from our respective products.

Basically you are holding us hostage with a list of demands that, if agreed to, would severely limit our ability to use our brand. Demands like, never use the color red, silver or blue; never use red with any bovine term or image; and never produce soft drinks. Do you own the color red? What about fuchsia, scarlet, crimson, or mauve? Are you planting your flag in the color wheel and claiming those shades for Red Bull? Do you claim exclusive rights to all things bovine? Do you plan to herd all heifers, cows, yaks, buffalo, bison, and steer into your intellectual property corral, too?

When we refused to succumb to your demands, you responded by filing a formal opposition to not just our trademark but to the very name Old Ox Brewery. Way to step on our American dream. You say you are protecting your intellectual property rights, but your claim, in our opinion, is Red Bulls**t.

We can only interpret your actions as one thing—bullying. You are a big Red Bully. Just like that mean kid from grade school pushing everyone down on the playground and giving us post-gym class wedgies. You are giving us one hell of a corporate wedgie. We don’t appreciate it and we sure as hell don’t deserve it.

Is this really what you’re about? Are you a bully? Your extensive marketing campaigns (your glitzy advertising, your sponsored sports events, your death defying stunt shows, etc.) certainly don’t project that image. Take a hard look at your “case.” Can you honestly look at our brand and say, “this is a threat to my image?” We don’t think you can. Given that, we repeat our offer: We agree NEVER to produce energy drinks. In exchange, we are asking for one simple thing: Leave us alone. Drop this trademark dispute. The only people benefiting are the lawyers.

Sincerely and Uninfringingly Yours,
Chris Burns
President – Old Ox Brewery

To which, the legal department at Red Bull responded:

Red Bull has not sued anyone. Brands, big and small, seek to protect their trademarks every day. All we are asking is to allow the administrative process at the U.S. Patent and Trademark Office to run its course and we remain hopeful that a fair settlement can be reached by both parties.

That's technically true, but, in classic respond-to-a-question-not-asked, Red Bull's reply failed to address Old Ox's complaints, requests, and proffers. Tying up a small brewery's limited capital in lawyers' fees for "motions, discovery proceedings, and depositions" is a clumsy, blunderbuss shot. One might hope that the marketing staff at Red Bull, heretofore clever, would recognize that the poor social-media public-relations that its employer is suffering right now might make any gain against tiny Old Ox negligible, and, possibly, net-negative.

Red Bull has never made a beer. Old Ox has never made a beverage called Red Ox, though they've made a few beers with colors in the name, including Black Ox porter and Golden Ox ale. And rather than a particular bovine, the brewery's name comes from Old Ox Road, the Loudoun thoroughfare which dates back to the early 18th century. [Loudoun is a county in Virginia, twenty miles or so miles west of Washington, D.C.]

— Washington Post, 9 February 2015.

Old Ox Brewery opened in June, 2014. On a few occasions since then, I've tasted its beers.  I've enjoyed them each time.

On the other hand, I've tasted Red Bull only once since the mega-company, now headquartered in Fuschl am See, Austria, opened in 1987. (It sold 5.387 billion cans of Red Bull in 2013 alone.) I drank half a can about fifteen years ago, and couldn't finish it. I found it wretched.

To answer the children's riddle above, one could say that it's the Merrill Lynch bull that doesn't belong in the triptych. Red Bull and Old Ox are manufacturers of liquids. Merrill Lynch is a financial firm.

But, to look at it again, like one of those old 'what-do-you-see' illusions, it's Merrill Lynch and Red Bull that are the similar things. They are the bovine lummox 'bull-sh*tters.' It's Old Ox, a brewery, that is patently different.

No consumer confusion, there.