Brand grab: CUB fights to keep heritage in landmark IP case

CUB Victoria brewery

We always stress the importance of protecting your brand by trademarking the name, identity and its associated positioning but what if that is not enough.

This week, an interesting case of brand security is in the Australian courts. It is a David and Golliath fight between CUB and Thunder Road Brewing Company to restore shelved beer brands and for once, I am on the side of the giant.

Brewing giant CUB, now part of SABMiller, owns the trademarks to many of our most well known beer brands. These include the iconic VB and Fosters (the famous Aussie beer that no-one drinks in Australia). Like many big companies, they also own the trademarks for many brands that they no longer have in production.

Melbourne based Thunder Road Brewing Company is now challenging CUB for 50 of their brands. Thunder Road is arguing that the brands represent Australia’s rich heritage and they have a right to keep them alive.

cub-heritage-brandsBrands involved in the grab include, Ballarat Bitter, McCracken’s Invalid Stout, Cairns Draught, Brisbane Bitter, Kent Old Brown, NQ Lager and Richmond Lager.

Phillip Withers, CEO from Thunder Road told ABC’s PM that CUB is “hoarding these trademarks… in order to maintain their domination of the Australian brewing industry.”

Withers claims that these are icons from the mid-19th century that reflect our brewing history and we should have a right to enjoy them.

While Withers can try and dress this argument up as in the public interest, Thunder Road is simply looking for a cheap way to acquire some brand heritage, without compensating the rightful brand owners.

Phil Whithers, Thunder Road Brewery


CUB told The Age
that they value their heritage brands very highly. “We have a great program in place that regularly releases them to the public. We would encourage Thunder Road to create its own history.”

Jeremy Griffith from CUB told ABC’s PM, “fundamentally these are our beers, these are part of our history, our heritage. They’re really important to us, they go to what we are as an organisation. So yeah, absolutely we’d want to defend it”.

The argument will centre on a loophole in the trademark law around brand usage. It’s true that many of these brands haven’t been used for decades, but how long is enough?

The outcome could potentially have wider implications for brand owners.

Brand owners need to have confidence that significant investment in building brands cannot be simply taken by opportunists who are too lazy or too cheap to create or properly acquire brands.

How much is brand heritage worth and should a company be able to trade off another company’s IP just because they are not using it?

The decision over the CUB brands is expected in the next few months.

Michael Hughes
Director of Brand Strategy
Follow @logiculture

5 Comments

    • Jules,

      Thank you for your feedback. However, I am not sure where you get your information from.
      CUB is NOT a client of Truly Deeply. I have no connections with the company so there is nothing to declare other that this is my opinion.

      Regards,
      Michael

  1. Yeah, right….

    Fosters is on your client list on your website. Fosters Wine brands was managed together with Foster corporate beer brands at the time the non use action started in 2009 based on Internet records and public records. So you lack credibility.

    Given the lack of balance in your “opinion” and failure to read the letter of the law in the trademark Act as well as objectively explore the discretionary aspect which is the really interesting test case at stake, l’d say you are promoting Foster abuse of power as a good thing not the facts of the case or the public interest argument at stake.

    It really interesting that ultimately the small number of “opinion ” articles that bias in favour of Fosters all ultimately are linked back in some distance way to a commercial relationship with Fosters at some point. Yours in one of these few. Readers aren’t that stupid these days. In any case, let’s wait for the outcome. It should tell the final story and give direction on the way the trademarks should or should not be managed. I think these guys have guts to take on such a corporate and public law bully.

    • Jules,
      You are correct that the agency has done some work for several wine brands, which at the time were owned by Fosters. However, this was at the brand not corporate level and it was many years ago. The agency has never worked on the CUB beer brands.
      I was not personally involved in any of this work and joined Truly Deeply post this relationship. I have never had any relationship (commercial or otherwise) with CUB or Fosters.
      Sorry to dispel your conspiracy theory but there is no commercial relationship that is behind this article, it is purely my opinion.
      I believe that companies invest a great deal in creating and building their brands and have the right to protect them. Brands contribute to the value of a company, along with other company assets and this is often severely underestimated.
      I appreciate the reasons for Thunder Road Brewery wanting to revive these brands, but this should be through the negotiation to buy the rights from the legal owner (CUB). ‘Taking’ the brand trademark any other way is really no different to stealing property.
      However, I would be supportive of Thunder Road creating their own version of these regional beers, providing they have their own distinct product, identity and name. If CUB are trying to stop them from using the name of the town or region (eg. Ballarat or Cairns) in the name in any way, then I would be supportive of Thunder Road fighting this point.

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