Decision on ownership of Ballarat Bitter and other heritage beers due by July

Following a two-day hearing before a delegate of the registrar of trademarks at IP Australia, the case ended Wednesday with the registrar reserving his decision and parties told to expect a ruling in the next few months.

The trademark dispute covers a large portfolio of beer brands and names including Ballarat Bitter, NQ Lager, Tooth’s, Abbot’s Lager, Carlton Ale, Richmond Lager and Victoria Lager, and if successful would allow craft brewer Thunder Road Brewing – or other micro-brewers – to use the branding for new beers.

Thunder Road, based in Brunswick, launched legal action against Foster’s brewing arm CUB last year to unlock trademarks to these beer brands, allowing it to resurrect many brands that have been missing from pub taps for decades and in some instances before the Second World War.

The trademark dispute will centre around Foster’s genuine use of the heritage beer brands in the past three years and the “non-use” section of trademark law covering a “use it or lose it” guideline. To maintain a ‘clean’ trademark system and ensure it isn’t turned into a museum, trademarks representing brands unused for three years can be stripped from the register.

IP Australia will also consider any residual reputation that might still be contained in these trademarks, and the possibility of consumer confusion if a brewer other than CUB were to mass-produce the beers under the contested brands.

In the hearing on Wednesday, Thunder Road barrister Tom Cordiner detailed the more than 50 beer trademarks his client believe should be removed from the register, arguing in most cases the beers had not been made in decades, while a small selection of limited releases of key heritage brands was in fact a ploy by Foster’s to protect its trademark and show usage.

He said the 2011 release of a limited range of heritage beers by Foster’s was a “blip in the ocean” of beer and did not reflect ongoing commercial use of the beer trademarks.

Mr Cordiner said freeing-up the contested trademarks owned by Foster’s would serve the public good and also allow other brewers to play in the field.

The Age