Distinctive to descriptive: trade mark considerations in the Australian beer industry

The Federal Court's judgments in Urban Alley Brewery Pty Ltd v La Sirene Pty Ltd¹ and Stone & Wood Group Pty Ltd v Intellectual Property Development Corporation Pty Ltd² provides a warning to craft brewers that fail to strike a balance between descriptiveness and distinctiveness in choosing sub-brands for their beers.

The wide variety of craft beers available in Australia attests to the creativeness of its makers. A new range calls for a new name, often followed by a desire to monopolise it. But the creative energy used in mixing barley, hops and yeast with water does not always carry over into the name creation process.

Names often contain descriptive elements or emotive words that are chosen to reflect the origin or backstory of the brewery, often resulting in a name that is difficult to monopolise because it is insufficiently distinctive. The purpose of a trade mark is (or should be) to denote origin – the more distinctive a trade mark is, the easier it is for