E-Malt.com News article: Australia: Melbourne brewery attempts to battle CUB to revive historic beers

A Melbourne brewery seeking to revive historic beers is taking on beverage giant Carlton and United Breweries (CUB) over the trademark of more than 50 beer labels, ABC News reported on April, 15.

A two-day hearing into the matter began in Melbourne on Tuesday, April, 16.

Thunder Road Brewing Company is hoping to remake many of Australia's historic and forgotten beers.

It says CUB, which is part of South African-owned Foster's, no longer uses the historic labels and should not be able to retain the trademarks.

Thunder Road chief executive Philip Withers says consumers should have the right to drink the labels because they represent Australia's rich beer history.

"We claim they've actually been hoarding these trademarks, they've been banking these trademarks, and that's in order to maintain their domination of the Australian brewing industry," Mr Withers said.

"There's some great examples or regional labels, for example Richmond, Richmond Lager and the actual name Richmond, that was a brewery that was shut down soon after it was sold and bought by CUB in the 1960s.

"The mark's virtually disappeared, nobody remembers that mark, then there are marks from the mid-19th century such as McCrackens - again that's a mark that reflects the history of Australian brewing, that's a history that we want to tell."

But Carlton and United Breweries says the labels are part of the company's own history.

Director of corporate relations Jeremy Griffith says the company will vigorously defend its ownership of the marks.

"I think to put an analogy and say if somebody walked up to Holden and said, 'you haven't made Monaro for a couple of years, we're going to take it from you', I think most people would think that's an unreasonable proposition," he said.

"Fundamentally, these are our beers, these are part of our history, our heritage, they're really important to us. They go to what we are as an organisation.

"What we'd encourage Thunder Road to do is to make beer, but make their own history, make their own heritage."

A report from IBIS World in December points to the changing nature of the beer market in Australia.

A number of consumers are drifting away from major beer brands, with many drinking craft beers or switching to wine or cider.

Naren Sivasailam, a senior industry analyst from IBIS World, says craft beer is arguably the rising star of an otherwise stagnant beer industry.

"Craft beer now accounts for about 2 to 2.5 per cent of total beer manufacturing," he said.

"That's grown from virtually nothing a decade ago, so it certainly falls within the subset of the fact that Australians are drinking much better, even though we're drinking less.

"I think it's a general trend of premiumisation across the food and beverage sector; we're drinking more sophisticated wine and beer and that's being driven by a growth in imports of premium European beers and indeed manufacturing.

"We now domestically make a lot of foreign beers like Heineken and indeed some other beers as well that are quite popular overseas.

"The likes of Mountain Goat and James Squire have really exploded across both retailers and indeed in pubs and bars, and that's clearly been driven by consumer demand."

Associate Professor Michael Handler from the University of New South Wales says the trademark dispute between Thunder Road and CUB is complicated due to the sheer number of labels involved.

But he believes CUB will have a strong argument to retain the marks.

"It seems arguable that for CUB, for many of its marks that are being challenged, does have this residual reputation," he said.

"Many consumers, particularly of craft beers might be aware of the history of these marks and associate them with CUB.

"Now if another party were to come along, start using those marks, but without a licence from CUB, that might generate a degree of confusion in the market place and that's a factor that's often highly important for the registrar in working out whether to use discretion to keep a mark on the register."

Professor Handler says even if Thunder Road wins this case, CUB could pursue its argument of residual reputation using other avenues.

"It can rely on that reputation to, say, bring an action against Thunder Road under the Australian Consumer Law, or maybe in passing off for example, if Thunder Road decides to start using the marks.

"And that's the case even if CUB ends up having its registered trademarks removed, it can still bring those other actions."

Thunder Road is not asking for access to old beer recipes.

It says many of the beer recipes are missing and it would research the beer labels in question and reproduce a product in keeping with the original beer.

Mr Withers says virtually all of the labels are forgotten.

"What's important in a situation like this is in order to revive labels you have to get a situation where they haven't been used," he said.

"In this particular case we're talking about non-use action, which is available to us in the Trademarks Act, and all these labels haven't been used within the three-year required time."

CUB says it already releases heritage beers periodically.

"We do have a very good program in place, we call it our heritage program where we do release these beers to the market," it said.

"The reality is we do need to manage consumer interest in these products, and what we've found is that by releasing them every few years there is consumer interest."

Professor Handler says it is possible the case could have broader implications.

"It could have significance in the sense that other companies with large trademark portfolios involving trademarks they don't use might find themselves vulnerable to challenges," he said.

"The difficulty is that these issues aren't just resolved by a simple use-it-or-lose-it analysis, there's always this discretion involved."

Intellectual Property Australia says such disputes are usually resolved within three months of the hearing.

17 April, 2013