Foster's defends its brewing history for heritage beers
An attempt by craft-beer maker Thunder Road Brewing to seize up to 67 Foster's trademarks was akin to "commandeering" the history it had developed for more than 120 years, the brewer said.
Addressing a delegate of the registrar of trade marks at IP Australia, a lawyer for Foster's said on Tuesday that attempts by Thunder Road to extinguish its trademarks and use them for their own brewing purposes was akin to "reaping what they haven't sown". He said it represented a "commandeering" of Foster's trademark beer brands that were steeped in history.
At the Melbourne hearing, the lawyer offered extensive details of Foster's use of many of the heritage beers over the past 50 years through its Carlton & United Brewers division. He said CUB had released commercial batches of heritage beers such as Ballarat Bitter, Kent Old Brown and Richmond Lager, which were sold through pubs and retailers such as Woolworths and Dan Murphy's.
Thunder Road launched legal action against CUB last year to unlock trademarks to these beer brands. The trademark dispute looks likely to 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.
"That this is at all an elaborate case of smoke and mirrors, to suggest all of this is a sham to shore up a [trademark] position just isn't a serious contention," the Foster's lawyer said.
Foster's had brewed heritage brands a number of times over the past 20 years typically producing 50,000 cans per release.
A lawyer acting for Thunder Road said Foster's re-registered a series of trademarks only after Thunder Road had approached Foster's to licence the brand. The move, he said, was to shore up trademark rights instead of proper use of the brands.
He said there wasn't genuine use of the trademarks and that CUB had not tendered evidence of marketing plans for their 2011 heritage beer launch, a time when Thunder Road attempted to licence some of the beers.
The lawyer said Foster's was abusing the trademark registry to defend intellectual property rights as opposed to showing continued commercial use of the beer brands. The case continues on Wednesday.
Frequently Asked Questions about this Article…
The dispute centres on Thunder Road's legal action to unlock up to 67 Foster's trademarks for heritage beer brands. Thunder Road argues Foster's (via Carlton & United Brewers) hasn't shown genuine, continuous commercial use of those trademarks, while Foster's lawyers say the brewer has long produced and defended its historic beer brands and that Thunder Road is effectively trying to commandeer a century of history.
The article specifically names heritage beers such as Ballarat Bitter, Kent Old Brown and Richmond Lager as examples of the historic brands Foster's (through CUB) has released commercially.
Foster's lawyers told an IP Australia delegate that the company never abandoned its historic brands, producing large commercial batches over past decades via Carlton & United Brewers, selling through pubs and retailers like Woolworths and Dan Murphy's, and periodically brewing heritage releases — often about 50,000 cans per release over the past 20 years.
Thunder Road's lawyer contends Foster's re-registered a series of trademarks only after Thunder Road approached to license some beers, didn't show genuine use of the trademarks, and relied on the registry to shore up rights rather than demonstrating continued commercial use. The lawyer also said CUB didn't tender marketing-plan evidence for a 2011 heritage beer launch.
The dispute looks likely to turn on the trademark 'non-use' provision—commonly described as 'use it or lose it'—which requires a trademark owner to show genuine commercial use of a mark within a recent period. Thunder Road is challenging whether Foster's has met that genuine‑use test for the heritage brands in the past three years.
The matter was heard at a Melbourne trademarks tribunal and addressed to a delegate of the registrar of trade marks at IP Australia. The hearing was ongoing at the time of the article, with the case continuing on the following day.
While the article focuses on the legal arguments, it highlights that trademark disputes can create legal costs, uncertainty around brand ownership and distribution of heritage products, and potential impacts on how brands are commercialised. Investors should watch outcomes of such cases because they can affect a brewer's ability to monetise historic brands and the company's reputation.
Foster's lawyers provided extensive details of historical use, saying CUB released commercial batches of heritage beers over the past 50 years, sold them through pubs and major retailers, and brewed several heritage releases over the past 20 years typically producing around 50,000 cans per release.
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