Good morning [%first_name |Dear Reader%],

Do you remember the first time you had Red Bull? I do.

I was in college and Red Bull’s “student marketeers” were on campus handing out free cans of the energy drink. This was a time when you immediately said yes to anything that didn’t make you more broke than you already were.

So I grabbed four cans and had them all in quick succession.

It tasted vile, but it was also like nothing I’d ever had before. At least a new experience, I thought. But on the downside: I couldn’t sleep for two full days, I kid you not. I was so wired that I speed-walked around the hostel multiple times to tire myself out.

I’ve had Red Bull exactly twice in the 17 years since that experience. And you couldn’t pay me to have a sip of that drink again.

I’m not going to go on about the merits of Red Bull’s taste or how it makes you feel. But that’s what I first thought of when I read the news that prompted our edition today.

What the Red Bull-Pepsi spat tells us about taglines

Since 2018, Red Bull has been fighting a legal battle in India against drinks-and-snacks giant PepsiCo.

About a tagline.

More specifically, over the tagline for Pepsico’s Sting, a Red Bull rival launched in the country a year earlier. (You may have seen Sting ads featuring movie star Akshay Kumar and a giant gorilla during the ongoing Indian Premier League cricket tournament.)

This is Red Bull’s tagline: “Vitalizes Body and Mind.”

And this is Sting’s: “Stimulates Mind. Energizes Body.”

Do you think they are too similar? That’s what Red Bull thought too, and it wasn’t happy.

Source: Red Bull

The “R” at the end of the tagline means Red Bull has trademarked it, and enjoys legal protection against infringement of the same. So it took Pepsi to court.

But last week, the Delhi High Court ruled in Pepsi’s favour. And among the reasons it cited was that both taglines were descriptive in nature. Pepsi had, in fact, argued that Red Bull’s trademark itself was invalid under Section 9 of the Trade Marks Act, 1999.

Stripped of legalese, what Section 9 says is that an application for a trademark can be refused if, among other things, it doesn’t distinguish the product from others or it has descriptions that have become customary to that product category.

So, in short, the very purpose of an energy drink is to make you alert and active. And if that’s how a company sells its energy drink, it cannot get legal protection for it. Hence PepsiCo’s contention that Red Bull’s tagline didn’t deserve a trademark.