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It was undisputed that the trade mark owner himself did not produce or sell any drink under the trade mark in dispute. However, the trade mark owner argued that the combination of vodka and RED BULL® was proposed by the trade mark owner, additionally advertising material was provided to bars and restaurants. More than 20,000 bars and restaurants in Austria use the trade mark with the consent of the trade mark owner, it is even checked whether the mixed drink really comprises RED BULL®; in case RED BULL® is contained in the mixed drink, the use of “FLÜGERL” is tolerated.
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