On 11 August 2004 Fosters’ Australian lawyers filed trade mark application number 1015213 for its new beer brand, “Carlton Pure Blonde“. The following month the beer was launched.

Pre-launch planning involved a sophisticated trade mark law strategy. “Blonde” is a common descriptor (eg it’s in dictionaries) for a light coloured style of beer. Blonde described the product (beer), hence the word could not be a registered trade mark. What to do? If you want to fast track read the numbered list below.

A year later the beer brand became Pure Blonde, dropping “Carlton”, except for use on the bottle neck label. What was Fosters’ trade mark law strategy or  legal battle plan for the shift from Carlton Pure Blonde to just Pure Blonde?

On its website the Fosters Group Ltd states “Pure Blonde – the first beer in Australia to be marketed as low-carbohydrate – is full-strength and great tasting, with 70% less carbohydrates than a regular beer.”

Foster writes its own history

In The Australian Financial Review on 6 August 2007, marketing specialist Neil Shoebridge, corrects Fosters’ subtle spin. He notes that Fosters’ product was not the first low-carbohydrate beer in Australia. He writes that “title belongs to three brands – Swan Dry, Tooheys Dry and Castlemaine Dry…”.

Three years on, Pure Blonde is a winner in the now busy blonde beer marketplace of 2007. As a winner, Fosters is writing history. But there’s more to its legal strategy story.

Shoebridge notes the signs of Pure Blonde’s market success since its launch:

  • it has captured 3.1% share of beer sales, including 3.6% of the packaged beer market (which accounts for 75% of beer sales);
  • the Fosters Group claims it as its fourth-biggest brand; and
  • sales continue to grow, with a jump of 137% “over the past year”.

Trade mark law strategy – stealth and scope creep

It is hard to believe that the sole reason for not emphasising the Carlton name was because the product no longer needed a leg up using the established Carlton name. Certainly, Carlton is a big name. Fosters’ beer brand or trade mark portfolio includes Carlton Dry, Carlton Gold, Carlton Sterling, Carlton Draught, Carlton Mid, and Carlton Black.

More likely, legal considerations were involved in the launch stage for using the Carlton name in both marketing and in Fosters’ trade mark application for the beer. One legal strategy for building a legal monopoly over a trade mark worth having (ie a trade mark which is legally defendable) involves combining stealth and scope creep.

  1. In trade mark law, a common defensive or assertive strategy at the product launch stage is to launch by sticking a defendable or well-known mark at the front, followed by a less defendable and new trade mark at the rear, (in this case “pure blonde”).
  2. Fosters launched its marketing and trade mark law strategy with the Carlton battering ram at the front, followed by “pure” and “blonde” in the rear.
  3. Entering an already active market, Fosters may have perceived it needed at the launch stage a strong word or words it legally called its own, ie Carlton. Importantly, the word “blonde” was unoriginal and it also is a common descriptor for a light coloured style of beer.
  4. On its own the word “pure” added little from a legal perspective to the descriptive word, blonde. “Pure” and “blonde” strike Lightbulb as being weak names at the launch stage for beer from a trade mark law perspective. We see this in the fact that the two next trade mark applications by Fosters were not for the words “pure blonde”. Instead Fosters filed for protection of the convex and concave full Pure Blonde label as pictured.
  5. Carlton went into legal battle with the Carlton battering ram at the front. On gaining market acceptance and presumably no legal attacks, after a year Fosters de-emphasised Carlton in marketing the beer, letting Pure Blonde compete alone for market share among the blondes. Hence in February 2007 through its lawyers Fosters finally filed for a PURE BLONDE (words only) trade mark application. The Trade Mark Office has approved it for registration. Thus this will achieve protection of the name Pure Blonde through stealth and scope creep.

This analysis may not explain in full, or even in part, the TRUE CAUSE for the change in name or the trade mark registration strategy. However, it does shed light on the LEGAL EFFECT of the name change under trade mark or branding law in Australia. The legal effect of de-emphasising the name Carlton after the launch stage, and dropping it from the most recent trade mark registration, has been to build the legal brand power of the now very valuable name – Pure Blonde.

The takeaway

Marketers love to seek legal monopolies over descriptive, short and focused brand names. Despite legal obstacles against descriptive names, they can do it provided they adopt an informed legal strategy to build legal monopoly brand rights under trade practices, trade mark and other intellectual property law. Through strategy Fosters has kept its trade mark strategy simple for blondes.

Noric Dilanchian