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Intellectual Property and IT update: Trouble brews on Thunder Road as micro tries to uncap beers of old

Jun 6, 2012

As published in The Age on 6 June, 2012

A DAVID-AND-GOLIATH battle between a micro-brewery in Brunswick and global brewing giant SABMiller, which owns Foster’s, could see the resurrection of brands not seen at pubs since before World War II.

These would include Victoria Lager, McCracken’s Invalid Stout, Abbots Lager, Tiger Head and Richmond Lager.

Thunder Road Brewing, a craft brewer based in Brunswick, has launched legal action against Carlton United Brewers, an arm of the now foreign-owned Foster’s, to unlock trademarks over 50 heritage beer brands to launch a revival of long-lost Australian beers.

The dispute, now before an examiner at the trademark tribunal, will centre around Foster’s genuine use of the portfolio of heritage beer brands in the past three years and the ”non-use” section of trademark law covering a ”use it or lose it” guideline.

Thunder Road Brewing chief executive Philip Withers said he was challenging up to 70 per cent of Foster’s trademarks, and was doing so to revive the Australian brewing industry after the takeover of Foster’s and Lion Nathan by foreigners.

”We are not doing this for any other reason,” he said. ”There is no equity value in these brands because there has been no cash flow in them, they haven’t been in business for decades and they have no value other than being important to the revival of our industry and keeping them in Australia.

”These brands represent the history, when beer was brewed locally, and local is important because it’s all about better quality and greater freshness.”

He said a number of trademarks, such as Abbots or Richmond Lager, had not been used by Foster’s or were occasionally produced in very small runs just to start the clock again on the trademark and protect it from being used by someone else.

Mr Withers has invested more than $6 million in his Thunder Road brewery, which produces unpasteurised beer for more than 120 pubs around Victoria. Other brands in his sights include Cairns Draught, Brisbane Bitter, Kent Old Brown, NQ Lager and Carlton Malt Ale. Some beer brands have not been in commercial production since World War II or as far back as the 1920s.

Kliger Partners special counsel Daniel Kovacs said ”use it or lose it” was a feature of long-standing registered trademarks in Australia.

”The Trademarks Office and courts will not allow a business to monopolise an old trademark that it is not using,” he said. ”If an old trademark has not been used in trade by its registered owner in the last three years, any interested third party can apply to have it deregistered.”

Mr Kovacs said the trademark owner then had the task of proving it had used the trademark in the relevant period.

”As long as the use is genuine, commercial use in Australia, it need not be extensive for the trademark owner to defeat the attack on its registration. There have been cases where even a small amount of use has been sufficient to preserve the registration.”

A Foster’s spokesman said it would defend its trademarks and heritage. ”Some of these brands form the core history of CUB. Many of these beers were brewed by the six breweries — McCracken’s, Victoria, Carlton, Castlemaine, Shamrock, and Foster’s — that came together in 1907 to form Carlton & United.

”These beers continue to be an important and intrinsic part of our business … the concept that an individual, who has contributed nothing to their establishment or upkeep, can now lay claim to them is a nonsense.”

The case is continuing.

More information

For more information on intellectual property law, please contact Daniel Kovacs, Special Counsel, on (03) 8600 8859 or dkovacs@kcllaw.com.au or Jeremy Goldman, Principal Lawyer, on (03) 8600 8886 or jgoldman@kcllaw.com.au.

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