Trademark-Radler
Barefoot Radler (Trademark infringement)
The slightly sweet, lemon tasting Barefoot Radler from Lion Nathan is no more. The reason for this brand’s removal from stores comes from the highest Australian court. On 19 May of this year the High Court found that Lion Nathan’s use of the brand Barefoot Radler was in breach of a trademark owned by the American wine giant, E & J Gallo Winery. The issue was not without controversy (and not just from a beer consumer’s point of view) as the preceding Federal Court decision found in favour of Lion Nathan.
Lion Nathan’s primary attack on the trademark was that the Registrar should remove the trademark on the grounds of non-use. When non-use is alleged, it is up to the trademark owner to rebut the claim and Gallo relied on the fact that a small quantity of their product displaying a barefoot mark had been sold through a commercial outlet. Lion Nathan argued that such sales did not qualify as “use” on the basis that:
1. Gallo was not an authorised user of the trademark;
2. the Gallo trademark was not used in good faith;
3. the Gallo trademark was not used in the course of trade; and
4. Gallo’s use of the trademark in combination with a device, i.e. a picture of a footprint, did not constitute “use”.
Lion Nathan was unsuccessful on each of its arguments.
Although there are important legal implications contained in this judicial decision, the moral fo the story is that trademarks are valuable business assets which can provide monopoly protection to their owners. Had Gallo not registered the trademark Barefoot Cellars, they would likely have had almost no claim against Lion Nathan and their ability to market the E J Gallo Winery Barefoot Cellar label in Australia would have been jeopardised.
Put simply, trademark registration is an important step in protecting brand integrity.
If you have any queries regarding trademarks or product branding, please call James Hope at our office, (03) 8601 1109.