Mix Drinks and Trademarks

Highball red cocktailEvery business with a website runs the risk of breaching trademark protection for a trademark registered somewhere in the world.

Which law is relevant to your website will depend upon the products you sell, the countries you sell into and the trademarks you use.

You may get away with advertising something under someone else's registered trademark in another country if you have no intention of making sales in that country. If you don't make sales you don't benefit from the use of a trademark that does not belong to you. If you damage the reputation of their trademark however, you might still be sued! You might also reconsider your marketing budget if you are spending money advertising somewhere where you cannot make sales!

So where do the drinks come into all this?

There have been a couple of recent international rulings about alcohol related trademarks.

You may or may not know that many years ago the region of Champagne got upset about other vinters around the world using the name "Champagne" with their bubbly wines.

There was a legal hullaballo in the 1980s which resulted in a few changes the way in which wines and other luxury foodstuffs are named. So you are more likely to find a cheap "sparkling wine" than anything referred to as a cheap "Champagne" (Heaven forbid!). Part of the court decision discussed the 'superiority' of the product using such a name.

In 2010 there have been rulings in both Australia and the UK regarding the use of trademarks pertaining to alcohol. In Australia, Lion Nathan brewery have again run into trouble with the name of one of their boutique beers.

Back in the 1990s Lion Nathan produced a 'Duff'  beer until 20th Century Fox and Matt Groening Productions sued for misleading and deceptive conduct, alledging that the public would associate the product with the Simpsons cartoon, or at least that it was endorsed by the creators of the cartoon.

in 2010, Lion Nathan have run into trouble again naming one of their beers "Barefoot Radler" in breach of a registered trademark for alcoholic beverages. The German Gallo Winery has barely a presence in Australia, unknowingly selling a very small quantity of wine under the "barefoot" brand through a distributor. But that ever so small presence was enough for the courts to enforce their trademark registered in Australia and require Lion Nathan to stop using the word "barefoot" with the sale of their beer. There was discussion as to whether Gallo Winery's intentions to do (or not do) business in Australia were relevant, and it was decided that the occurance of a sale in Australia was more important than the company's intentions. There was no allegation of misleading conduct in this case, it was a straight-forward enforcement of trademark.      

In another case reviewing consumer's expectations, the UK courts recently made a ruling about vodka and VODKAT. This decision was closer to that in the case of Duff beer in that the courts looked at whether or not consumers would be misled by the use of the name in advertising, or not.

There are apparently regulations about the alcohol content of vodka so that there is a minimum % of alcohol required before a product can be called a vodka. Vodkat has a significantly lower alcohol content. The court decision was about the percieved superiority of a product.

On the basis of the lower alcohol content, the court found that consumers were likely to be misled as to the quality of the product sold, and the producers of Vodkat have been ordered to stop selling it under that name in Europe.

So what does this mean for you? Two things:

  • If you are going to spend time and money developing a brand, do your homework first!
  • If you have a brand trademarked in some part of the world, a little business activity in that part of the world may be all you need to protect the use of your trademark in that country.

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