Field Theory by Hadyn Green

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Field Theory: It's not yours, but you can have it

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  • George Darroch,

    proof that Radler was a common or generic term in New Zealand in 2003

    Oh rubbish. Lies.

    That wasn't directed at you, by the way, but at IPONZ and
    DB.

    By that standard, almost anything that is made overseas is neither common nor generic. The first person to start making it gets a default license to use the name, to the exclusion of all others. The first company populated by upstanding white New Zealanders with intellectual property lawyers to sell gulab jamun or bal mithai under those names gets their name. Forever. (they're sweets, by the way).

    Peter, the problem is that Ugg/ugg was a name created by Decker that had become generic, and therefore they lost the trademark. Radler is a generic name created by Germans, and for which a specific company which at no point had exclusive use of the term has been given a trademark.

    WLG • Since Nov 2006 • 2264 posts Report Reply

  • Paul Campbell,

    (apologies if you've seen me post this elsewhere ....)

    Pissed off by DB trademarking "radler" - there's a way to protest - report them to the NZ Advertising Standards Authority for falsely advertising a 5% beer as a radler aka 2-3% shandy - don't forget to point out how dangerous it is to claim a 5% beer is a low alcohol type beer

    Go to: DB's radler page - check out that page (if their stupid cookies let you - the pages are 'age protected'), be offended that they are falsely advertising a 5% beer as a "radler" and make a complaint by filling out this form

    Dunedin • Since Nov 2006 • 2622 posts Report Reply

  • ScottY, in reply to George Darroch,

    The first company populated by upstanding white New Zealanders with intellectual property lawyers to sell gulab jamun or bal mithai under those names gets their name. Forever.

    Could you just confirm that spelling for me please? Just want to make sure I get the details right in my trade mark application.

    West • Since Feb 2009 • 794 posts Report Reply

  • Rich of Observationz,

    That looks like a beer boycott to me, unless I brew my own.

    Epic? Tuatara? Stoke?

    Also, why can't breweries be proud of where they come from and call their beers Otahuhu Special or South Auckland Bitter?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Sacha, in reply to Scott A,

    required proof that Radler was a common or generic term in New Zealand in 2003

    But using a survey conducted in the present (after years of protected exclusive use of the term) to prove the public's understanding? Puhlease. What sort of crack are IPONZ on? Sure gives a lot of confidence about any future IP disputes.

    Ak • Since May 2008 • 19719 posts Report Reply

  • Sacha,

    In last night's episode of Radler Live (4 mins), at the halfway mark John Campbell quotes IPONZ guidelines: "A trademark must be distinctive of a single trader's good or services".

    IPONZ seem to have got that wrong (especially if there were imported Radlers in the NZ market at the time). Maybe their procedures need to allow for the possibility they made a fundamental error?

    Ak • Since May 2008 • 19719 posts Report Reply

  • Tom Beard, in reply to Rich of Observationz,

    Funnily enough, unlike food where localism is all the rage among the gourmet middle classes, in beer local identification is associated with the era of blokey parochial tribalism. There wasn't much to distinguish different brands of sweet, watery, pisstanker swill on taste grounds, so brands like Canterbury Draught and Waikato whatever-it-is promoted local loyalty, as did Speights and Monteiths in their earlier days.

    The new market for boutique brews doesn't identify so much with their province as with being the sort of person who has wide and refined tastes. We Wellingtonians might proudly drink Tuatara partly because it's brewed on the outskirts of our region, but we'll know that Emerson's is from Dunedin and that Dux de Lux is (was?) brewed in Christchurch, appreciate the sense of place that comes from that, but we'll drink a given beer primarily because it's delicious.

    Besides, even boutique breweries have rather distributed operations these days. I associate Yeastie Boys with Wellington, because you can't miss Stu's trousers around town, but apparently it's brewed in Invercargill. Wine is associated with the terroir where the grapes are grown, not with the location of the winery. If we associate beers with the source of their ingredients rather than the location of the brewery, pretty much every NZ beer would be a Nelson beer.

    Wellington • Since Nov 2006 • 1040 posts Report Reply

  • LIISA, in reply to George Darroch,

    By that standard, almost anything that is made overseas is neither common nor generic. The first person to start making it gets a default license to use the name, to the exclusion of all others.

    - Yeah, that's the bit I don't get - Is there not some sort of over-arching international trade mark HQ/clearing house to ajudicate this stuff? - Otherwise what will happen with imported beer (correctly) labelled Radler, but now 'illegal' in NZ?

    Someone should flood the market with it... mwa ha ha haaaaar.

    - right, I'm off for some home-made cider. Or stout. or maybe both. (hmmm... who has got the trade mark on Stout I wonder?)

    Wellie • Since May 2008 • 46 posts Report Reply

  • John,

    Curious that DB also market Heineken in NZ. and that Steinlager , made and marketed by their opposition NZ Breweries was originally called Steinecker and lost a case of 'passing off' because of the similarity of name the symbol of a Stein on the label and a similar style of bottle to Heineken. The Judge said that a client aware of Steinecker in a dimly lit bar could be mistaken between the two if I recall accurately.

    Plain language cannot be patented , it can be part of a trade mark with the words generally in a distinctive style but the words are usable by anyone at anytime in plain type. for instance Tip Top Ice Cream and Tip Top Bread both have registered
    trade marks and both trade in their products but do not compete, the original ruling made that quite clear. Another is Quik Stik with the two roundels used as a trade mark for self adhesive labels. Anyone can use the words Quick Stick or Quik Stik but they must not use the roundels and would be unwise to use red white & blue
    in their design, They may get away with selling self adhesive labels but as Quik Stik has been in the market in NZ & Internationally since 1960 they would be likely to lose in the court because of usage which could easily be proved,

    Auckland • Since Dec 2007 • 21 posts Report Reply

  • Damian Christie, in reply to LIISA,

    Otherwise what will happen with imported beer (correctly) labelled Radler, but now ‘illegal’ in NZ?

    ...it would be a breach of trade mark. In much the same way as if I imported a bag that was labelled Gucci even if that name wasn't trade marked by the other Gucci in the country the bag was made in.

    By that standard, almost anything that is made overseas is neither common nor generic.

    @George - well no, but there are a lot of words being used commonly or generically, especially foreign ones, overseas.

    Having an trade mark does give you the ability to back-date your application (up to a year, IIRC) in other countries that have signed up to the TRIPS agreement, but in essence it's still first-in-first-served system on a country-by-country basis. That might seem a bit archaic when Google can quickly show what's going on overseas, but it's probably an important part of our sovereignty, and I can imagine the uproar if a little NZ company was excluded from its rightful trade mark in this country because some evil multinational had been using it overseas first.

    Wellington • Since Nov 2006 • 1164 posts Report Reply

  • Damian Christie,

    (but as someone said above, making the term Radler as generic as possible is the best way to invalidate it, cf Sellotape, Xerox etc...)

    Wellington • Since Nov 2006 • 1164 posts Report Reply

  • Rich of Observationz, in reply to Tom Beard,

    I understand that a lot of the independent beer labels get some or all of their product contract brewed, right?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Russell Brown, in reply to Damian Christie,

    but as someone said above, making the term Radler as generic as possible is the best way to invalidate it, cf Sellotape, Xerox etc…)

    But it is already generic, that's the point.

    Selltotape isn't, as anyone who's ever received one of their terribly polite legal reminders can attest.

    Auckland • Since Nov 2006 • 22834 posts Report Reply

  • Ian Dalziel,

    Radlers of the lost art...
    Forgive me if someone has already said this
    - but I too am hopping mad about this...
    DB (fully owned by Singaporean based company Asia Pacific Breweries) has gone too far recently...
    They tried to rewrite our political history and sell it back to us...
    (the first Kuhtze is the deepest!)
    Now they are denying the existence of a major European (well at least German, Bavarian and Czech) brewing tradition.
    While they insist (nay, litigate) that others peddle theirs as pedallers.
    May this be the bier on which DB burns!

    Meanwhile - Don't put a Tiger© in your tank!
    or any of their other products.

    Christchurch • Since Dec 2006 • 7944 posts Report Reply

  • Richard Wain, in reply to Damian Christie,

    imagine the uproar if a little NZ company was excluded from its rightful trade mark in this country because some evil multinational had been using it overseas first.

    This happens all the time in band world... because most bands worth their stripes want to sell their music offshore.

    The first NZ example that springs to mind is Cut Off Your Hands... original name was Shaky Hands, changed to avoid legal action from another band with similar name The Shaky Hands from Portland, Oregon. There must be a few others.

    Since Nov 2006 • 155 posts Report Reply

  • Lyndon Hood,

    what will happen with imported beer (correctly) labelled Radler, but now ‘illegal’ in NZ?

    …it would be a breach of trade mark.

    Protectionism? Much as I wonder what the WTO would make of that, I'm not sure it's the kind of question I want to encourage.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Rich Lock,

    Otherwise what will happen with imported beer (correctly) labelled Radler, but now ‘illegal’ in NZ?

    ...it would be a breach of trade mark.

    You'd probably be able to get round this particular example using the parallel import rules, if I recall them correctly (I may very well be mistaken and I don't have time to look them up at the moment).

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Rich Lock, in reply to Richard Wain,

    There must be a few others.

    Dust Brothers/Chemical Brothers

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Rich Lock, in reply to Peter Graham,

    Here's the IPONZ decision, if anyone is interested.

    And if you liked that, you may alos wish to track down a copy of:

    Anheuser Busch Inc v Budweiser Budvar National Corporation High Court [2001] 3 NZLR 666; Court of Appeal CA 158/01.

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Angus Robertson,

    Make mine a vodka L&P, hold the ice.

    Auckland • Since May 2007 • 984 posts Report Reply

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