Foster's has never abandoned its historic brands, producing large batches of a range of heritage beers over the past decades, with the old labels still containing a residual reputation and value that it would defend, lawyers for the brewer told a trademarks tribunal yesterday.
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.