In the recent decision of E & J Gallo Winery v Lion Nathan Australia Pty Limited [2009] FCAFC 27, the Full Federal Court found that the conduct of Lion Nathan in selling in the Australian market a specialty beer under the trade mark BAREFOOT RADLER constituted infringement of an Australian registered trade mark BAREFOOT, in the name of Gallo, in class 33 for "wines". This determination was based on a conclusion that Lion Nathan's radler beer constitutes "goods of the same description" as wine for the purpose of the infringement provisions of the Trade Marks Act 1995.
However, there appears to be some debate as to whether this Full Federal Court decision is authority for the wider proposition that beer and wine are "goods of the same description", with some commentators suggesting that the decision is limited to the particular facts of the case. In determining that Lion Nathan's radler beer constitutes "goods of the same description" as wine, the Full Federal Court placed weight on the fact that Lion Nathan's radler beer (which incorporates lemon flavouring to overcome the bitter taste often associated with beer) was intended to be an appealing alternative to wine and that Lion Nathan deliberately developed the radler beer with the objective of enticing consumers who previously drank wine rather than beer.
The extent (if any) to which this Full Federal Court decision will be viewed as authority for the wider proposition that beer and wine are goods of the same description is therefore yet to be seen.
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