Microbrewery challenges Foster’s over trademark use

Posted by AFN Staff Writers on 6th June 2012

Thunder Road Brewing, a microbrewery based in Brunswick, Melbourne, has taken Foster’s to court over more than 50 heritage Australian beer trademarks including Victoria Lager, McCracken’s Invalid Stout, Abbots Lager, Tiger Head and Richmond Lager.

When a trademark has not been genuinely used in more than three years, the Trademarks Act may permit another company to apply to use the same brand.

In an interview given to Australian Food News today, Philip Withers, Chief Executive of Thunder Road Brewing, said that the principle of “use it or lose it” is applicable. He claimed that Foster’s might not currently be using “about 70%” of their portfolio of owned trademarks.

Genuine usage of a trademark requires that the usage is not misleading, deceptive or constructed. The usage of trademarks, according to Mr Withers, “has to be in good faith,” and he said that the law is “not about just focusing on monopoly rights.”

Foster’s, now part of the SABMiller group, will be countering that it had been using the trademarks in question at least until August 2010, which is within the three-year period. However, these facts are being disputed by Mr Withers’ company.

Mr Withers believes a growing number of Australian microbrewers can offer greater choices, and add better quality and freshness to Australia’s brewing industry.

He said Thunder Road Brewing is expanding, and currently has a 100,000L capacity per month. Mr Withers defines a microbrewery as “typically producing in one year what CUB or Lion Nathan produce in a couple of days.” Other defining features of a microbrewery, according to Mr Withers, are independence, small-batch production, and all-natural ingredients including 100% malted barley.

“We’ve always taken the view that beer is food; because beer is food, local content is very important,” Mr Withers said.