L-R: The Broo mark and the Australian Brewery mark

Australian Brewery has failed in a bid to register a trade mark that was ruled to be“deceptively similar” to that of the Australia Draught beer brand owned by Broo.

Independent Brewery Pty Ltd, an entity associated with Australian Brewery, applied to register the trade mark “in bad faith”, the Australian Trade Marks Office ruled.

“The similarities between the trade marks are so numerous and precise in their detail that it cannot be mere coincidence,” said hearing officer Adrian Richards.

“Such a degree of similarity makes it likely that a copy of the earlier trade mark was available to the designer of the later trade mark.”

The parties agreed that the two trade marks were “deceptively similar”, but they each had very different accounts as to how this situation eventuated.

Australian Brewery claimed its trade mark was in use earlier and copied by Broo founder Kent Grogan after he visited its brewpub in Rouse Hill, Sydney, where he saw it on decals and signage.

“[Australian Brewery] relies on Mr Grogan recalling some 14 months later, in near photographic detail, the trade mark,” Richards said.

Conversely, Richards said Broo could prove Australian Brewery knew the “precise detail” of Broo’s trade mark, because a director of Australian Brewery had received an invite to the Australia Draught launch event, held on June 24, 2013.

“Armed with this knowledge, [Australian Brewery] issued instructions to file for registration of the trade mark on the day of the launch,” Richards interpreted, noting that the application was filed the following day, June 25.

“Such conduct falls short of the ‘standards of acceptable commercial behaviour observed by reasonable and experienced persons’,” Richards said.

He refused to register the Australian Brewery trade mark and ordered it to pay Broo’s costs.

Broo labels opponent‘un-Australian’
Commenting on the decision, Broo’s Kent Grogan told Australian Brews News: “We are incredibly proud of the hard work and creativity that goes into developing our unique brands.”

“Intellectual property is an incredibly important part of a business that is completely built on building a brand.

“Companies who attempt to plagiarise someone else’s hard work is [sic] unethical and just plain un-Australian,” he said.

Australian Brewery works hard “to protect our brand and the different trademarks that encompasses”, founder Marcello Colosimo told Australian Brews News.

“Being a small family company [IP disputes] sometimes can happen. For example there was some confusion in the market place when Coke opened the Australian Beer Company, but there’s not much we can do about that,” he said.

“Whilst we don’t agree with the decision made, as The Australian Brewery has been operating for a longer period of time, we will continue to focus on the business and producing the high quality beer we are known for.”

In any case, the product sold by Australian Brewery under the offending trade mark is no longer on the market.

Broo IPO still open
Meanwhile, investors now have until next Monday October 3 to purchase shares in Broo, after the company extended the close date on its IPO for a second time.