Having recently returned from a whirlwind tour of Europe, a trade mark dispute floated across my radar that was very close to my heart. Or rather, my taste buds. The makers of a beer called “Bavaria” had filed an Australian trade mark application for their label, pictured left. Notwithstanding the name, Bavaria is actually brewed in Holland. And therein lies the problem.
Though initially accepted by the Trade Marks Office, the application was later opposed by an association of Bavarian brewers on the basis that Bavaria is a “geographical indicator” and/or such a label would mislead people into thinking the beer came from Bavaria.
In the decision [PDF] handed down last year, IP Australia’s trade marks delegate Deirdre O’Brien took into consideration the experiences of Australians who travel to the famous German state, as well as similar Bavarian beer halls right here at home.
She said that for a lot of us the word BAVARIA conjures up “images of people sitting together at tables in beer halls drinking locally brewed beer, eating local sausage specialities and generally having a good time.
Who let this guy in? Me at the Hofbrauhaus
I can only heartily agree. In my 3 week tour of Europe I spent 4 days in Munich (the capital of Bavaria), which for me was something of a rite of passage given the many tales my parents had told me of their exploits there some 30 years ago.
Most notably my dad, whilst dancing on a table in the famous Hofbrauhaus beer hall, had apparently lost his footing, fallen and taken out an unfortunate waitress bearing 8 steins. On arrival I wondered if I would be recognised by that same Bavarian waitress, now grey-haired and with a permanent limp, as being the kin to “those mad Australians”. Given the number of Aussies that visit Munich, I probably needn’t have worried.
Indeed it is a magical place. Bavaria has a fascinating history which has its roots in the days of the Roman Empire, through to Napoleonic times when it became a Kingdom, to its forced unification with Germany in the late 1800s and the subsequent horrors of World War II. In recent times it has become a strong industrial centre and popular tourist destination. Much of Munich itself was destroyed by Allied bombing in WW2 but was meticulously rebuilt in its old style giving it a unique and compelling “old-but-new” vibe.
And of the beer? Well, our Munich tour-guide proudly boasted that “Bavaria contains two-thirds of all the worlds’ breweries”! Not bad for a state smaller in size than Tasmania. You might ask for evidence supporting such an outrageous claim, but I can assure you it’s difficult to doubt its authenticity with a one litre stein of tasty brew in front of you. And the beer ain’t just for the benefit of the tourists either. Bavarians themselves put away 170 litres of beer a year. Of course the tourists come in their droves too, especially during the famous Oktoberfest festival when an estimated 6 million litres of beer is drunk.
But it’s not just about quantity. For the last 500 years or so, all Bavarian beer had to comply with the "Bavarian purity law" which decreed that the only ingredients to be used in the production of beer were water, barley, hops and later yeast. Most breweries still adhere to this law. The result, as anyone who has downed a stein or two will attest, is pure and unadulterated heaven.
The point is that beer is a serious business in Bavaria, and the Trade Marks Office agreed.
Me with an overly friendly Bavarian waitress
In her ruling, the delegate noted that even though “BAYERISCHES BIER” (Bavarian Beer) was a recognised geographic indication, strictly speaking BAVARIA was not. Despite this, section 43 of the Trade Marks Act provides that a mark cannot have any connotation that “would be likely to deceive or cause confusion”. Applying this test, and in light of the association most Australians would make from the name BAVARIA, the delegate was satisfied "the word BAVARIA connotes the beer is from Bavaria", and accordingly the mark was refused registration.
One has to feel some sympathy for Bavaria N.V., the makers of Bavaria, in that even writing the words “HOLLAND BEER” quite clearly on the label wasn’t enough in the eyes of the delegate to counter the supposed assumption from consumers that the beer was from Bavaria.
So why didn’t this get them out of jail? According to the delegate, on top of the fact the word BAVARIA is much more prominent in the mark than “Holland Beer” below it, people are less likely to closely inspect a beer label than a medicine label, for example. In support of this statement she cited the decision handed down by Lord MacNaghten in Montgomery v Thompson in 1891, who observed that “thirsty folk want beer, not explanations”.
Meanwhile the makers of Bavaria are appealing the decision to the Federal Court. As for me, well I’m off to the nearest Bavarian beer house. All this law is making me thirsty.
Further reading on law and legal services for liquor, wine and beverages: