Say It With Me Now, Australia: Beer And Wine Are Not The Same Thing, Not Even For Trademarks

from the not-like-the-other dept

While I've done a fair share of posts here on the topic of trademarks and the alcohol industries, one of the most frustrating sub-types for those posts is the sort where the dispute exists between one wine maker and one brewery. There appears to be some misconception that alcohol is one big market or industry for the purposes of trademark. While it is true that far too few countries explicitly recognize that wine and beer are different markets in their trademark laws, most of the countries do still have customer confusion as a key test for infringement. And, I feel it's safe to say, the general public can tell the difference between beer and wine, and typically know enough about each's crafters to tell their branding apart.

Now the general public in Australia is facing this test in a way, with a large liquor chain trying to oppose the trademark application for a craft beer gift service over a wine trademark it holds, but doesn't seem to be using.

The Beer Drop was officially launched in October 2019, with founder Evan Reitano filing to register its trademark in June 2019.

In January this year Coles opposed the trademark, saying it was “contrary to law” as it had substantially identical or deceptively similar trademarks – in this case, ‘Wine Drop’ which is currently not in use, and whose web page redirects to First Choice.

“Our Wine Drop subscription service was a popular service for our First Choice customers and the www.winedrop.com.au website currently redirects customers to the First Choice Liquor webpage,” a Coles representative told Brews News.

This appears to be as close to an admission that a trademark is no longer in use as one could hope for. "Was" a popular service. The website redirects to a different branded page. And that's all before we get to the simple fact that wine and beer are not the same thing. Add to that that the word "drop" isn't particularly source identifying and you begin to wonder how there's a case to be made by Coles at all. And then we can add to all of that my suspicion that the Australian public can probably discern between a big retailer and a startup craft beer gift service. With that, this all begins to look silly.

It looks as though Beer Drop will be focusing on Coles' failure to use the trademark, however, rather than beer and wine being distinct markets.

Reitano undertook a small business course before launching The Beer Drop and said it was invaluable to his IP experience so far, but what really stung was the references to ‘bad faith’”, he said.

“I read over it and I laughed it off at first, I had never heard of the Wine Drop, the first thing I did was jump onto Google. Being a Coles Liquor business you’d think it would be in the top one or two search hits which it wasn’t, and I can’t find any trace of it. It’s strange because they’ve said in their opposition that they’ve built a reputation with that brand, it feels like they expected me to read it and say shit, it’s Coles Liquor, let’s back off."

Part of the reason for that may have been that Reitano worked for another Coles liquor brand in his past. Some folks have claimed that, since he worked for a Coles brand, he must have known about the Wine Drop trademark. That is obviously silly. Expecting a line employee to know about every trademark a company is no longer using is insane. And it's also entirely besides the point because, again, this all ultimately boils down to the potential for customer confusion and here there is none.

Filed Under: australia, beer, beer drop, evan reitano, trademark, wine, wine drop
Companies: coles liquor


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  • identicon
    Crafty Coyote, 12 May 2020 @ 8:46pm

    The fact that they can't tell the difference between beer or wine leads me to believe that they might have HAD too much beer or wine before making their decision.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2020 @ 9:19pm

    AFAICT Coles (megatentaclecorp) doesn't even produce alcohol, they merely sell it. WTAF LOL.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2020 @ 9:40pm

    One of the staunchest defenses in favor of trademark protection is to prevent consumer confusion. When even the goddamn trademark holders themselves are puzzled as to whether something they don't make can be confused for something they used to, it boggles the mind as to who this trademark protection is for.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2020 @ 9:49pm

    Yep one thing is clearly not like the other.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2020 @ 7:04am

    This actually seems like there would be substantial potential for confusion if Coles still offered the wine drop service and the logography was similar. I can easily see that a liquor store would have similar but separate services for the delivery of wine and beer. However with the wine drop service no longer being offered there is no chance for customer confusion.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2020 @ 7:49am

    Fosters. Australian for stupid.

    reply to this | link to this | view in chronology ]

  • identicon
    TheDumberHalf, 13 May 2020 @ 10:06am

    One Court case

    They're going to need more than One Lawyer to sort this out.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 May 2020 @ 12:13pm

    Ok.

    Anyone from the younger days remember the Stuff we drank..
    Go look again whats happened to:
    Alcohol level..
    And the packaging..

    1 of those old wines, is not a Malt liquor.

    reply to this | link to this | view in chronology ]

  • icon
    NaBUru38 (profile), 15 May 2020 @ 11:34am

    I disagree with the article's opinion. The point isn't confusion between wine and beer, but between the manufacturers of wine and beer.

    Companies like Coca-Cola, Pepsi, AB InBev, Heineken, Diageo, Pernod-Ricard, Suntory and Asahi. They produce a wide range of beverages.

    Therefore if a customer sees Wine Drop and Beer Drop, or Wildcat Beer and Wildcat Vodka, they may assume that both products are from the same company.

    reply to this | link to this | view in chronology ]

  • icon
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