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Regarding false advertising, there is legislation specific to the sale of alcohol that makes it illegal to mislead the consumer.
I'm not sure how you could argue Tui would negatively mislead anyone, but I'm positive you could legally argue Radler would.
Say a designated driver wants something light to sip on while their mates are enjoying a night out. Say they had experienced radler during their travels in Germany and understood it to be beer mixed with lemonade - a refreshing low alcohol alternative. Say they had 3 or 4 Monteiths Radlers thinking they must be the same thing.
You get the picture. Dangerous.
Not to mention the possibility for some sleazy lawyer to offer it up as a drink driving defence.
I would have thought Tui East Indian Pale Ale was more misleading than Radler. Radler was registered by IPONZ because the average consumer in NZ didn't know what Radler means (at least that’s what the evidence appears to have shown). A foreign word that people in NZ don’t know the meaning of is as good as a made up word for trade mark registration purposes. And a made up word or a word people don’t know the meaning of cannot be misleading. However I think people in NZ would understand that ‘East Indian Pale Ale’ is a style of beer. Tui is not an IPA and so calling it an IPA is misleading. At least Monteith Radler is sweet and tastes like a shandy (from memory, I haven't tasted one for years).
If you're going to drink alcohol and drive you should read the label to check the alcohol content.
For trademark purposes you're absolutely right Craig (and you know more than most on the subject). But in terms of advertising and the sale of liqour act the law is pretty clear. You cannot mislead the consumer.
I agree with you - East India Pale ale is more misleading in terms of flavour - where Tui pales in comparison to the real thing. But in terms of potential harm to the consumer the real IPA is a far stronger drink. Whereas Monteiths Radler is twice the abv of the average genuine German radler.
SOBA had to prove that x number of people were familiar with the style of radler thus it wasn't a generic term - which we couldn't. But in a court case arguing that the consumer is mislead surely you would only require one mislead consumer?
Think you'll find it's a similar test; is the consumer likely to be misled? Since the average consumer doesn't know Radler is meant to be 2.5% the average consumer can't be misled when they get a 5% one. I think the Fair Trading Act is more the legislation to use, see s9 from memory, but then you've got to read the case law too. Trade mark law and breach of the Fair Trading Act is not my area. Ask me a question about patents!
How do you brew a beer that tastes like a shandy and is 5% ABV? Would be good after mowing the lawn in February.
As an aside, I saw in the news the other day someone is trying to register Shandy in NZ. I'm sure evidence would shown the average NZer would know what a shandy is so there is no hope of success. It would be like trying to register Radler in Germany. If someone tried to register Shandy for beer in Germany they might be successful as probably no-one in Germany would know what a Shandy is (except maybe a small group of beer nerds :o) ).
I was going to suggest that we rename the national Home Brew Competition 'The Beer Olympics' but thought better of it after reading this:
Seems you've got to be careful with everything you say these days.
Haha, you think if there was a good case for Prior Art it would be Olympics. I would have thought it would be up there with 'God' as something you couldn't get intellectual property rights on.
What about the Saddler Olympics?
Couldn't you just set up a temporary company to run the show, then de-register it after the event?
Saturday 27th August - National Radio...This Way Up
... at about 12:35pm we're exploring the world of trademarks, something we seem to be hearing a bit more about recently. First it was DB Breweries with Radler beer and then Fonterra asking competitors to remove the word 'vintage' from their cheeses because it owns the trademark. So how can you trademark a word like 'vintage'? We speak to intellectual property lawyer Sally Peart of Mitchell Mackersy Lawyers.
Though I would not count Boundary Road Brewery as my favourite brewery in the world, it is starting to produce some accessible, drinkable beers. They're the kind of beers that will encourage people towards the brighter lights of craft beer and they are not badly priced either.
Anyway, BRB has produced a Radler. Except it hasn't. See the enclosed brilliant advertisement which I think hits the spot perfectly!