A court decision has cleared the way for Wild Turkey to be joined by another wild bird on liquor store shelves. Photo: Jurgen TreueA battle between rival alcohol brands has been fought and won in a “landmark” Federal Court case that could see a new “wild” bird on Australian liquor shelves.
Nanjing Night Net

Wild Turkey bourbon and Wild Geese whiskey clashed late last month in the most recent of 55 court cases internationally in the past 15 years.

Bourbon drinkers will be familiar with the Wild Turkey label, from Kentucky in the US, but could be excused for not having heard of the other fowl’s drink.

That was partly because until the latest decision, Wild Geese couldn’t sell its Irish whiskey in Australia because the rival brand held the trademark.

It all started with a little vineyard in South Australia, Wild Geese Wines, owned by Adelaide barrister Patrick O’Sullivan.

The tiny winery, whose output a lower court judge described as “a few cases here, a few cases there”, lost control of the Wild Geese mark in 2007 after a challenge from Wild Turkey’s parent company at the time.

The company leased the rights to the name back to the winery, allowing the SA winery to continue operating but effectively blocking the Irish whiskey maker from the market.

This licence was at the heart of the court case.

Wild Turkey’s current owner, liquor giant Campari America, argued the agreement imposed a “detailed quality control regime”, thus satisfying the requirement for continued “use” of the trademark.

Previous Wild Turkey owner The Austin Nicholls Company tried to block a winery on the Gold Coast hinterland from registering its Bush Turkey port wine in 2001.

Trademarks can lapse if they’re not used for three years and one month, which gave Wild Geese whiskey a way in to challenge the existing mark.

The Irish whiskey’s owner, Lodestar Anstalt, represented by Brisbane intellectual property lawyer Ken Philp, argued the quality control was too loose to constitute real use.

After an early win and a later appeal loss, the full bench of the Federal Court of Australia agreed with that argument on June 28, setting aside earlier decisions and awarding costs to Wild Geese whiskey owner Lodestar.

The decision opened the door for Wild Geese Whiskey to apply to register its trademark in Australia ahead of potential sales.

Mr Philp said the “landmark decision” could have a wide impact.

“All trademark licence agreements will have to be carefully scrutinised in light of the Federal Court’s decision,” he said.

“Our firm will be giving advice to our own licensor clients on their reviewing their licence agreements and their procedures for control of their marks under those agreements or, if they are licensees, how they might extract some commercial advantages from their licensors.”

His partner, Bennett and Philp director Tony Bennett, said the case could never have succeeded if the SA winery had retained ownership of the mark.

“If they’d kept the ownership of it then there’s no doubt they would have been using it,” he said.

“They hadn’t sold a lot of wine but they’d sold a few hundred cases I think, over the period. Pretty small use but enough use.

“So the case was really about whether the Americans could say that amounted to use when they really had no genuine connection with it.”

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