HYPOCRISY or JUST PLAIN STUPID?

You be the judge.

The recent decision in New Zealand of the Assistant Commissioner of Trade Marks in the Radler beer case has clearly split into two camps:

-       Dominion Breweries (DB), who registered the RADLER trade mark in New Zealand for beer, and then sought to enforce it against unauthorised third parties using the name radler on imported beer

-       SOBA (Society of Beer Advocates) and their supporters

There has been an outcry in the press that as radler was the generic name for a type of beer commonly consumed in Europe, it should not have been registered.

SOBA had its day in court and lost because it was unable to show that in 2003, when DB applied to register RADLER as a trade mark, the radler name was used generically in New Zealand, and that in the intervening period until the hearing at the Intellectual Property Office, they could not prove that New Zealanders did not exclusively associate the name radler with the particular style of beer marketed under the Monteiths RADLER  brand.

Had SOBA been able to provide the type of evidence required to prevail in such a scenario, they would have succeeded in cancelling DB’s RADLER trade mark registration – they could not do so and, therefore, failed.

Which brings me to the comments in an article in the New Zealand Herald today by “intellectual property consultant Theodore Doucas,” where he says:

“The decision in favour of DB Breweries – on the grounds radler was not known as a descriptive term in New Zealand in 2004 – was out of touch with reality.”

He goes on to say:

“…..radler was a generic term for a style of low-alcohol beer, such as ‘lager’ or ‘pilsener’.”

His final quotes are:

“You cannot give somebody a monopoly like this and then think it’s good for business.”

“This is bad for New Zealand, bad for business and bad for the consumer because it stifles competition.”

I refer to my heading above, and invite you to consider the following facts:

Theodore Doucas started up his trade mark consultancy business in November 2007.

Prior to setting up in private practice as a trade mark lawyer, Mr Doucas was, between April 2001 and December 2007, Manager of Trade Marks, and then Assistant Commissioner of Patents, Trade Marks and Designs at the Intellectual Property Office of New Zealand (IPONZ).

DB applied to register RADLER as a trade mark on 2 September 2003.

The RADLER mark was eventually registered on 8 June 2004.

The reason it took nine months to achieve registration was that the RADLER trade mark application was initially objected to by the IPONZ examining staff on the grounds it was not distinctive (it was the name for a European style of beer).

Submissions were filed by the lawyers acting for DB.  Eventually, Mr Doucas, in his role as Assistant Commissioner, accepted the application and then in June 2004 signed-off its registration.

Clearly, Mr Doucas was in charge of operations in the trade marks section of IPONZ at the time, and yet he now comes out strongly saying that the name was generic; the decision was out of touch with reality; and that giving people a monopoly in such a term is bad for business.

Sorry, Mr Doucas, you can’t have it both ways.