Radler - the story unfolds

[Geoff Griggs]

This is quite amazing. See attached file (you may need to download it and open it with Adobe Reader)

The sooner this lunacy is challenged and defeated the better!

[Al Witham]

According to the decision the legal position is that it was up to SOBA to prove it was well known. I assume that's because SOBA was applying for a review of the earlier decision, not DB. (I can't say whether that's correct. You'd have to ask a legal expert.)

So did they provide enough proof? That's the legal question. The moral question is totally different, and as I said, I agree with you that they shouldn't be able to trademark a style, but that doesn't mean the present law prevents that.

[Greig McGill]

The real problem is the *DB knew* that it was a style when they trademarked it. However, we weren't allowed to challenge that. We were limited to attempting to prove that Kiwis knew what Radler was in 2003. On average, they didn't. Sucks to be us. NZ government is a fucking joke. Therein lies the issue. red team, blue team, doesn't matter. Both are made up of a pack of idiots who win a popularity contest every three years, which somehow gives them the magical ability to govern us all. Ridiculous.

[Barry]

I disagree with that.

The law states that you cannot trademark a generic term. IPONZ have allowed DB to do exactly that.

If "well known-ness" was the legal criteria, how many witnesses would you have to provide to prove your case? we provided 4 (or was it 5?).

Would we have won with 10? 20? 100? Absurd.

The fact is at least one person recognised it as a generic term prior to 2003 ipso facto there would be many others whom had travelled to Germany and would similarly recognise it.

 

IPONZ couldn't go back on their decision without looking incompetent. In my opinion that's what happened here.

[Dave W]

I'm quite sure all the naturalised NZ resident Germans in Nelson, Northland, Coromandel and all around the country would have known of Radler too!

 

Or does having foreign birth make one a 2nd class citizen unworthy of being considered having a valid opinion?

[Al Witham]

It's a bloody tricky one to prove that's for sure. How many people have to know what radler is before the law kicks in? Andhow do you prove it? The decision seems to say it needs to be pretty widespread amongst ordinary beer drinkers. You'd have to ask a trade mark lawyer whether that's correct.

Is the total number of the German ex-pat population, beer enthusiasts and people who travelled to Germany enough, or does your average Tui slugger have to know?

I don't know what the law IS in that regard. I'm sure we all agree on what it SHOULD BE.

Anyway, we're all on the same side here, and I had no intention stirring up anything, just to point out that what the law is and what it should be aren't necessarily the same. I'll butt out now and go sniff some malt grains :-).

[Barry]

Don't do that Al, it's good to have balanced debate on this. So easy to lose your head with anger. Your points are good ones.

[Greig McGill]

We actually provided a lot more than that. There were a truckload of Statutory Declarations to that effect. It didn't matter, and to be fair, it probably shouldn't have mattered. The average Kiwi didn't know what a Radler was in 2003. That's the problem though. The average kiwi doesn't know what spooky action at a distance is. That doesn't mean it doesn't exist, or that you should be able to trademark it. Again, IPONZ is a waste of taxpayer money. Pack of morons, run by a pack of elected idiots.

[Tony]

That was fundamentally the jist of my feedback Barry.

[Greig McGill]

Correct again, Al. However, there were no other options open to us. See Pilgrims's analysis.

[Pilgrim]

This is the content of an email that I sent to John Campbell today:

 

"Hi John,

 

A point I would like to make about the whole Radler debacle.

 

Realistically IPONZ made a mistake in 2003 when they granted the trademark and now IPONZ have investigated the matter themselves and concluded that they acted properly. They were never going to admit to their mistake and unfortunately they are not included in the First Schedule to the Ombudsman’s Act so they are one of the few Government agencies that are not answerable to anyone but themselves. I believe that this is an intolerable situation, particularly in view of the fact that they are dealing with commercial interests worth many millions of dollars. Surely they should be subject to scrutiny.

 

Regards

Peter Northway

Wanganui"

I will also be writing to my MP, and a few others. I'm not prone to writing letters but I'll make an exception in this case.

[craig rothwell]

To challenge the decision of the (Assistant) Commissioner of Trade Marks it is necessary to file an appeal at the High Court.  Following the High Court the next step would be to take it to the Court of Appeal, and then the end of the road is the Supreme Court.

[Duncan]

I just received the following message from IPONZ in response to my feedback message to them yesterday.  Given it was sent to 'undisclosed recipients' I'm guessing some of you probably received the same message...

 

Thank you for your feedback to IPONZ regarding the Radler decision. We note your concerns relating to a complex area of the law. This can be seen from the decision in this matter, which is available athttp://www.nzlii.org/nz/cases/NZIPOTM/2011/19.html. The issues discussed in the decision centred around whether the term 'Radler' was known as a descriptive term in New Zealand when the trade mark was granted in 2003.  The Assistant Commissioner found there was no persuasive evidence to prove that 8 years ago when IPONZ granted the trade mark that the term Radler was understood more broadly in New Zealand as a beer style. There has been a lot of suggestion that this could lead to terms like “pilsner” or “lager” being trade marked. This is entirely incorrect in that these are currently well known terms in New Zealand.

 

It is not appropriate for us to comment further on the decision of the Assistant Commissioner in that it relates to more than one party who sit on either side of this matter, and the decision is still subject to a right of appeal. It should be noted that should one of the parties feel aggrieved by the decision they may exercise this right. It is not open to the Commissioner to bypass this process.

 

If you would like to know more about the registration process for trade marks, please follow this link – http://www.iponz.govt.nz/cms/trade-marks.

 

I trust that this has answered your question and has provided some context to the issues in this matter.

 

IPONZ