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Neil Miller - NZ

Fury at Radler ruling

Friday, July 15, 2011

The Intellectual Property Office of New Zealand has upheld DB Breweries' right to trade mark the word Radler, even though it is an established style of beer.  The Intellectual Property Office of New Zealand had been asked by the Society of Beer Advocates (SOBA) to decide whether the Intellectual Property Office of New Zealand was correct to grant DB a trademark to the term Radler in 2003.  Amazingly, the Intellectual Property Office of New Zealand found the Intellectual Property Office of New Zealand was correct to do so, largely on the grounds the nearly-100 year old beer style was allegedly not commonly known in New Zealand at the time.

To their credit, DB won costs but will not pursue them against the volunteer and non-profit beer group but the reaction to the decision has been furious.  SOBA was restrained saying it the ruling was ''extremely disappointing.  Imagine a firm registering the term 'Muesli' when used to describe cereal or 'Jalapeno' when used to describe hot sauce.  Our stated position has always been that we do not think that any brewery should own the name of a beer style.”

On-line reaction was much less polite with social media updates including “I think I might start up some coffee brands called latte, cappuccino, espresso & flat White and trademark the names”, “shame on IPONZ for #radler debacle.  Caving to foreign multinational at expense of locals” and “DB being able to trademark Radler is like Montana being able to trademark Sauvignon Blanc!  Ludicrous!!”

Easily the most brutal retort came from Dominic Kelly who owns Hashigo Zake, a craft beer bar in Wellington.  It was judged the second best beer venue in New Zealand by Beer and Brewer magazine and was the winner of the People’s Choice award.  Here are edited highlights of what he wrote in “An Open Letter to DB”:

“Now I have good reason to believe that after getting litigious with the Green Man Brewery you had internal advice to walk away from the Radler trademark, but for reasons no-one can fathom you chose to stick to it.  Perhaps you were still giddy from the good fortune of having been granted a trademark that even IPONZ staff concede off the record was a mistake.

Perhaps you have some kind of obligation to your corporate masters in Singapore and the Netherlands to give no ground in legal disputes.

So with overall sales of beer falling but the market for small independent breweries growing you have a victory that demonstrates you have nothing but contempt for New Zealand consumers and other brewers.  Rest assured that the feeling is quickly becoming mutual.

So now that IPONZ have chosen not to eliminate the “Radler problem” I can be less equivocal about my response back in May.  The chances of any product of your group of companies ever being made available for sale at Hashigo Zake just went from minute to nil.  And this year if your company’s executives come to Hashigo Zake looking for good beer after the BrewNZ Awards they will not be served.”

Ceri Wells, a founding partner in James & Wells Intellectual Property, took on the case for free on behalf of the Society of Beer Advocates (SOBA), because in his view DB's registration of what is a descriptive word for a style of beer amounted to an abuse of the trade mark registration system.  He described the decision as “a sad day for common sense.” 

"Now New Zealand is the only country in the world where only one company can market radlers and the public is not able to buy and enjoy a genuine imported radler.  I was happy to work on this for nothing, because I think the 'radler' trade mark is morally and commercially repugnant.  In New Zealand, only DB can use the word 'radler' to describe a radler drink.  This has not been allowed in other countries.  Using its trade mark, DB was able to stop Dunedin's Green Man Brewery from marketing an authentic low-alcohol radler, and stop supermarkets stocking imported radler-style beers." 

All-round lovable rogue Paddy Sweeney from the West Coast Brewing Company is running his own protest.  He has said “Big Brewery Bullies DB have a win over the trademarking of RADLER, a generic beer style.  Big Bullies with Big Bucks have a questionable win.  That biased ruling should open the doors to trademark any name, Wine, Muesli, chocolate, petrel whatever you want.  So go for it.  As our protest we have a beer available at the WEST COAST BAR AND GRILL called RELDAR.  Radler spelt backwards.  It’s a damn sight better than Radler.

DB has announced “We didn’t do it to prevent competition or restrict consumers’ access to different types of beer products.  Our trade mark has never stopped shandy or lemon or lime flavoured beverages being made by local brewers under their own brand name. In fact, this is what one brewery is already doing.”  This appears to be a reference to The Green Man Radler – an authentic Radler brewed by a German brewer – which was forced to be change its name to “Cyclist”.  Of course, this argument assumes that Radler is a DB brand, and not a generic beer style.

It was certainly a tumultuous day for New Zealand beer.

Cheers

Neil Miller


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