The Thunder Road Brewing Company has challenged Foster’s ownership of more than 50 registered trade marks covering historic Australian beers. A decision on the hearing is expected from the Australian Trade Marks Office in July 2013.
The challenge has largely arisen out of the Thunder Road Brewing Company’s wishes to remake many historic Australian beers, including Ballarat Bitter, McCracken’s, Brisbane Bitter, Kent Old Brown, White Horse and Richmond Lager.
Under Australian trade mark law, a trade mark that has not been in-use for a continuous period of 3 years or more can be removed from the Trade Marks Register. Once an application for removal of a trade mark for non-use is made, which can be made by any one, the onus is on the trade mark owner to establish use of the trade mark.
During the hearing, the Thunder Road Brewing Company naturally argued that some of the beer trade marks had not been used for decades. Foster’s, of course, argued that they had never abandoned the trade marks and that it was “not an option for somebody to commandeer these heritage brands”.
Nevertheless, even if Thunder Road Brewing Company is successful in having the beer trade marks removed from the Register, it does not necessarily mean they are free to use and register the trade marks themselves. Foster’s could still allege misleading and deceptive conduct based on residual reputation and/or file an opposition to any trade mark application. Of course, Foster could also appeal the decision to the Federal Court.
Interestingly and perhaps upsetting to all the beer lovers out there, is that fact that even if we do see these heritage beers resurface, the original recipes have long been lost. The Thunder Road Brewing Company, however, states that they will reproduce a product in keeping with the original beer.