How SOBA won the Radler case
There has been a lot of anguish and hand wringing over the IPONZ Radler decision released last week. One SOBA committee member described the decision to me as ‘a bad day for New Zealand”.
I disagree. SOBA did extremely well out of the decision and won everything it could expect to win.
Point One: SOBA has generated national and overseas interest in the matter, and almost all of the feedback has supported SOBA while criticising both IPONZ and DB. Achieving publicity and support is a win.
Point Two: SOBA survived. This was not guaranteed and I don’t think most SOBA members and supporters realise how much was at stake here. DB generously chose not to require SOBA to meet DB’s legal expenses, which could have cost us $10,000-$15,000+ depending on how lawyers charge their time.
SOBA started this fight. DB trademarked Radler with no objections. It later asked a competitor to recognise its trademark, and the competitor did so. SOBA then took on one of the most powerful corporations in New Zealand. SOBA knew the stakes and knew DB could seek legal costs. This was a bold move for a small, not-for-profit society. SOBA’s continued existence is a win.
Point Three: This case effectively prevents any other beer styles from being registered trademarks. DB’s case, which IPONZ accepted, was based on a general public ignorance of the radler beer style. SOBA has sent a powerful signal to IPONZ that beer styles are not acceptable trademarks and any attempts to register one will be challenged. IPONZ and potential registrants will have noticed SOBA’s position and we won’t see any other styles successfully trademarked. This is a win.
Point Four: This decision has no effect on the beer styles available to New Zealand drinkers. While it ridiculously prevents radler imports, the reality is that radler is a low-alcohol style that will not travel well.
Similarly, every New Zealand brewer is free to add fizzy to its lager and sell it as shandy. This won’t breach the trademark, and it will be better recognised by customers. There are few, if any, craft shandies available in New Zealand, and this shows the decision does not restrict consumers’ choice.
For the record, I think IPONZ’s decision was plain dumb. Basing trademark validity on consumer ignorance is bad logic and bad practice. Few Germans will have heard of a hangi, but we would be upset if it was trademarked there and a New Zealand business was asked to stop using the term, especially if the German used it to sell kangaroo burgers. IPONZ’s ‘regulation through ignorance’ policy has potential to put overseas investors off our business environment.
DB played it straight and trademarked what it could. It protected its trademark against a competitor. In doing so, it damaged its brand immeasurably. Monteiths was portrayed as DB’s contribution to the craft beer scene, with a hint of the West Coast Larrikin. DB has destroyed that image and proven Radler and its mates are just brands in a corporate portfolio. Its miner’s spade logo should be replaced by a law book and a calculator.
DB is still vulnerable to the risk of a consumer law case, challenging the accuracy of its labelling and the ethics of promoting a full-strength beer as a low-alcohol style. Perhaps a case could be made through the Fair Trading Act and Consumer Guarantees Act.
So all up, well done to SOBA and its volunteer advisors. You didn’t get everything you hoped for. But you achieved everything you realistically could, and survived at considerable risk. You put IPONZ on notice that its silly-buggery will not be tolerated in future. Your position has been widely publicised and you have lots of support.
Well done guys. Cheers!
Declaration of interest: I am a SOBA member. This post is entirely my own opinion. It does not reflect SOBA’s position, and it has not been show to any other SOBA members before posting.
View the full decision here.
IPONZ wants your feedback here.
DB wants your feedback here
© Martin Craig July 2011
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Intermittent and confusing tweets are available @nzbeerblog
Filed under: Beer Makers, Gushing forth | Tagged: crappy radler, IPONZ, SOBA
Very nicely said… i couldn’t agree more.
Excellently put Martin. Gave me a real glow of pride in what we’ve achieved. Still doesn’t take away the gut-wrenching pain that I felt when I heard the news of the decision, but it is good to accentuate the positive.
(Disclaimer: I’m a member of the SOBA Executive Committee but this is me posting as me).
Very nicely written.
Does anyone know if any Fair Trading/Consumer Guarantee complaints have been lodged?
Also, to outline more stupidity of DB, according to their T’s&C’s on the website, you aren’t allowed to link to their site without their consent…. *sigh*
I totally agree, although would like to point out that SOBA could infact have afforded the expenses that IPONZ awarded DB. However DB took the sensible option of not going after them.
Something that’s been bothering me immensely is an email I got from someone who specialises in IP law, who read the IPONZ decision and asked what the heck James & Wells were thinking regarding their approach.
I’m sure they did their best, but it seems there were a number of better strategies they could have employed but didn’t. It’s disappointing. Happy to pass the content of the email on in confidence.
Having said that, I couldn’t agree more with this post. Never underestimate the importance of a moral victory.
Well said Martin.
(Disclaimer: I’m also a member of the SOBA Executive Committee, but this is me posting as me!).
I wonder sometimes if the people that do these stupid things are just plain DUMB or are they being paid under the table to turn a blind eye
I think there should be an independent body that should be able to keep an eye on this sort of thing and do random
audits to keep them honest
Just look at how Fontera trade marked the word vintage to stop the small boy from calling their cheeses Vintage that is so wrong and totally unethical.
Are New Zealand’s big business losing there ethics just to have the edge.
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