‘Health conscious beer’…WTF?

It’s been a while since I’ve posted to BeerMatt and there are a lot of reasons for that, mainly I’ve been flat out. But I just received my “What’s Brewing” newsletter from my old friends DB Breweries (you can read about them here, here, here and here.) and, there’s nothing like low-carb beer to get me writing. What caught my eye was the headline, “Health conscious beer increases popularity.”

Why this struck me is that I remember earlier this year an Australian academic caused a kerfuffle when he suggested that low-carb beers are an “insidious health risk” because they are marketed as a healthy option and may actually encourage people to drink more.

“Nooooooo,” howled the brewing industry when this claim was made. “We don’t market these beers as being healthy, we’re not allowed to do that.”

“ ‘Low carb’ is just a statement of fact, there’s nothing on the bottle to suggest that the beers are healthy.”

But then in their newsletter, DB Breweries are calling it a ‘health conscious beer’.

Read the whole thing and tell me if you’re left with the impression that this is beer is healthier for you. It never actually says that and I am sure that DB Breweries have had a team of lawyers go over the wording of the and to make sure that it doesn’t actually cross the line – but its toes are right up on the line and its shadow extends three feet across it.

Look closely and it’s like one of the old Mad Magazine fold-ins, make “A” meet “B” and something else emerges.

The key elements are:

• It’s a health conscious beer
• It's aim is not to add to growing beer bellies
• It is brewed 33% longer than standard beer to remove unwanted sugars and reduce the beer’s level of carbohydrates
• The beer is meeting a growing consumer demand among New Zealanders who are increasingly conscious of the way they look and feel
• “More and more Kiwis love beer but naturally they’re not so fond of beer bellies!”  “Export 33 is full strength, full flavour and low carb so now you can enjoy beer that is less filling without a taste trade-off.”

The last is the clincher. Notice how cleverly the first and second sentences of the last point are non sequiturs. It looks like they logically follow, but they don’t. “Kiwis don’t want beer bellies”. “Our beer is low-carb and less filling.” The latter doesn’t actually relate to the former, and DB can’t be said to be saying their beer is healthy, although the objective is quite clearly to make the connection between low-carbs and avoiding a beer belly – or else, why put out the media release?

In fact, according to DB’s own website, the difference in kilojoules (the energy provided by the alcohol and carbs in the beer that, if unused by the body, causes weight gain) between this ‘health conscious beer’ (425 kilojoules) and DB Draught (462) is 37 kilojoules or roughly half of one percent of a daily intake of 8000 kilojoules. A mouthful of your second bottle and you’ve consumed the same calories as their regular draught beer. The difference is the same is two rice crackers – the plain, not flavoured version.

Incidentally, I would burn 215 kilojoules doing 10 minutes of light gardening.

As ever, if you enjoy Export 33 - or any other beer for its flavour – drink up and enjoy, that’s the whole purpose of beer after all. But if you drink Export 33 because you’re trying to avoid a beer gut or you consider it to be a ‘health conscious beer’, you are every bit as gullible as DB Breweries hope you are.

Oh, and send me your bank account details – I have US$5,000,000 that we can split….

It’s all fun until someone loses a Coffee Porter

Sometimes you’re having harmless fun and then some clown takes it a little too far and then everyone suffers when Mum and Dad crack down and ban everyone. It’s a theme that I’ve returned to a few times of late, what with distillers who couldn’t confine themselves to crappy sweetened distilled alcoholic beverages, deciding they would be better off making flavourless beer and then adding sugar and raspberry flavourings to it so they could sell the same tasting slop but cheaper. (It was obviously mature and responsible adults that they were targeting these sweet, fizzy alcopops to.) Of course, this just meant that the Federal Government changed the definition of beer to stop the practice and in doing so made it difficult for centuries-old styles of beers – ones that aren’t sweet or ‘sessionable’ – to be brewed.

(And to deviate from that theme for just a minute, it may be an old-fashioned view, but shouldn’t taste like the source from which it is derived? Shouldn’t wine taste of grapes? Beer of malt, hops and yeast? Once you get to the stage that you’re just making alcohol in the cheapest possible way and masking the flavour to make it easy to drink – you’re not drinking, you’re just consuming alcohol. The marketers can put it in fancy bottles and call it ‘Something-Something Platinum’ but it is just flavoured alcohol. While the advertising and marketing of these things portrays attractive 20-somethings in a chic nightclub being sophisticated, the reality is it should be a vagrant in an alley drinking metho and milk – because the approach to drinking is just the same: “I don’t care where my alcohol is from and what it tastes like, I’ll just mask the taste and drink as much as I can for the effect it brings.” But I digress…)

Another example is what’s recently happened in the States where the Federal Drug Administration has sent letters to 30 manufacturers of alcoholic beverages with caffeine in them asking them to prove that the combination is ‘Generally Regarded As Safe’. There is plenty of discussion of the issue on many of the US beer writers’ sites – as usual Jay Brooks has one of the best round ups – but the upshot is there is a risk that caffeine can be banned in alcoholic beverages. Now, when some of the drinks covered by the FDA letters include such classy beverages as Liquid Charge, 3Sum, 3AM Vodka, Vicious Vodka with Caffeine and Slingshot Party Gel, I can understand why they come under the scrutiny of the government. But as always the government would impose a blanket ban rather than just dealing with the problem ones and so because a couple of hyperactive kids with sticks who don’t know when to stop whack kids in the heads with sticks until they cry, there is a risk our parents will ban the rest of us from having fun recreating Star Wars light sabre fights with sticks too.

Now, if the logic is applied in Australia, Meantime Coffee Porter (there aren’t many locally made versions, though Brad Rogers did Crema  while he was at Matilda Bay) – which is definitely a one-beer-a-night-with-a-nice-dessert beer could be banned all because of a we-put-caffeine-and-guarana-in-a-vodka-drink-cos-the-kiddies-think-they’re-cool-and-can-stay-up-all-night-drinking-them drink.

Coffee and porter or stout are an almost perfect combination – blended together for flavour not for effect, but we could lose them because some kids just don’t know how to play right and take it too far.

Somebody slap that bitch, please

I find myself getting cranky a lot these days. I recently turned forty and I hope my crankiness is not due to getting old, but I can’t think what else it could be. I know that it’s not because I’m turning into a wowser, because the precise reason I’m getting cranky is that I WANT to drink. As I have said often, I love beer. I love to drink it. I want to drink the beers that I love when I want to, where I want to and how I want to.

I don’t want to be made to drink beer in plastic cups, or only before 10pm, or only drink beer with less that 4 per cent alcohol.

I want to drink a beer and not have it labelled with pictures of withered and spotty livers, or pictures of bleeding bodies littered around a car smashed by a drunk driver.

I want to be able to drink a beer and not to have to wait until the children are in bed and then sneak out to the back yard for a quick beer and then hide the bottle. Hell, I want my daughters to get the same pleasure out of pouring a beer properly for their hard-to-please dad that I did when I was growing up. Actually, I even want to be able to say that previous sentence without being accused of modelling unhealthy alcohol use and getting dragged into Children’s Services to explain myself.

Because of all of this I wrote an article for The Punch arguing the thesis that:

• Times are changing, the levels of alcohol consumption that are considered healthy are lowering and community attitudes to alcohol are changing too.
• What are considered the visible effects of alcohol – street violence and alcohol induced crime, all grouped under the heading ‘binge-drinking’ - are increasingly becoming hysterical front page fodder for the media.
• The hysteria will force governments to act or at least be seen to act to quickly solve what is a problem developed over a generation. When government acts in this way it acts badly.
• The upshot will be that people who enjoy beer (or wine or spirits) and do so responsibly will be subject to the same ridiculous “anti alcohol” rules and restrictions as the relatively small but visible problem group.

As a result I took a shot at the trend amongst the big breweries to chase the 18 –30 market, raised on fruit juice and sweet soft drinks, that are moving away from “bitter” beer (i.e. most beers) and opting instead for sweetened alcopops. The result is that brewers have gradually been lowering the body and bitterness of new beers to try and attract this demographic. Of course, one of the attractions of these beers is that they are “sessionable” – marketing speak for there being no flavour to leave you feeling like you’ve had enough to drink, no matter how many you have. (Ironically, they also tend to use the description “thirst-quenching” and “satisfying” even though the beers are designed not to quench or sate a thirst - the brewers don’t want you stopping after just one or two.)

Despite the above, one thing that can be said for these beers is that they have also been edging down on their alcohol content. Even XXXX’s beer-like Summer Bright Lager is “full-strength” at 4.2%.

While I think these beers pander to a certain type of drinker, they oddly do it in a sort of semi-responsible way…if that’s possible. And that’s exactly why someone should slap Bitch Beer before they ruin it for the rest of us.

This is a beer that has been designed to fill a gap in the market that didn’t need filling – the market for higher alcohol, lower flavoured beers. Their marketing basically brags about being brewed for effect, unashamedly chasing the market that is in the anti-alcohol crosshairs – young people who drink for effect.

Despite the compulsory, but feeble, ‘Bitch is potent stuff. Please drink responsibly’ the rest of the marketing spiel is a single-entendre.

Why BITCH? Simply because we'd had a guts full of beers made for old men. And BITCH embodied our non-conformist, play hard attitude to life.

Sure, we could have brewed it with less alcohol. And we probably could have made it not taste as good, but then we'd be just like the sh*t loads of ordinary beers made for old men that are already out there.

Packing 6.0% alcohol, it has a bit of kick. The extra alcohol adds a slightly sweet flavour. Unlike many high alcohol beers, BITCH is an unexpectedly fresh, easy drinking Aussie beer.

Swigged extra cold straight from the bottle, it's crisp, clean and gob-smackingly refreshing. Like a Mexican beer, you can add a slice of lemon or lime to put a twist on the flavour. Goes really well with food, or without food, which makes it perfect for every occasion, or not occasion.

This is basically just a malt liquor.

Again, it’s not a wowser thing. As I write this, I have a glass of Flying Dog Barley Wine beside me weighing in at 10 per cent…but it has so much flavour that I’ll probably have written another 1000 words before the glass is empty. (And it is satisfying, I won’t want another.)

This sort of cynical-half-smart-marketing-concept-cash in-contract-brewed (not that there’s anything wrong with contract brewing as a rule) garbage only hurts the beer industry and, I fear, will end up making it harder for people who want to drink beer (not just consume alcohol) to enjoy it. It will tar all higher alcohol beers with the same brush. The hysteria around BrewDog’s Tokyo shows that when it comes to a good frenzy, logic and facts will not calm things down (even if the frenzy was probably self-generated). The big brewers are already shy of putting out higher alcohol beers, even from their craft arms, lest there be public outcry. With branding and marketing like this on a product designed for one thing, these clowns are just painting a huge target on the back of all beer and the rest of the industry should call code red. Failing that, bars that stock it are pretty much signalling that they’re high risk and should start ordering the plastic cups and extra security now as well as putting the lawyers on stand-by.

And don’t get me started on Skinny Bitch, their planned low carb offering…

Ban glasses?

I have been thinking a lot about drinking lately (as opposed to beer), primarily fuelled by the intensity of the debate about ‘binge drinking’ that has rapidly been deteriorating into farce and hysteria. The most recent example of this came over he weekend when the Courier Mail ran a story headlined, “Woman on assault charges for glassing and punching” after a women threw a glass at a bloke. I don’t mean to make light of it, but is this a ‘glassing’? Call me old-fashioned, but even last week wasn’t a glassing when you would break a glass and slash someone with it, or break it over them cutting them in the process? This story is just a garden variety assault, not the extension of the terror on our modern streets. I’d even settle for that old favourite ‘alcohol-fuelled violence’ over ‘glassing’ in this case. When the media has the bit between its teeth there’s no stopping them…which is why the hotel and alcohol industries need to look carefully at their backyard. Alcohol is a cause célèbre at the moment and every media-worthy incident just sharpens the spotlight on alcohol and pushes the government harder to act – and the government has no ability to act precisely. Anything the government does won’t just affect the worst clubs and pubs, it will affect everyone. This was amply demonstrated when the Federal Government responded to malt-based alcopops by changing the definition of beer. Because one section of the alcohol industry wanted to act in a way that was clearly contrary to the excise laws, the brewing industry has been subjected to a change of the very definition of beer. Of course, it’s not a change that will hurt the big brewers – but it was a chance that will affect the small brewers who don’t have the ability to assay their bitterness or their sugar content, or just face greater compliance costs to prove they meet the requirements.

Returning to the Courier Mail story, forcing pubs to use plastic glasses wouldn’t have prevented this assault I suspect. If she wanted to hit someone, she would just as likely have thrown whatever was in her hand – even a plastic cup, used a pool cue or her bottle of vodka cruiser (I’m guessing here…call it a stereotype, but I’d be willing to bet that most pub assaults by women are caused by alcopop and cheap cocktail drinkers. I can’t remember the last time that a saison or robust porter was implicated in an assault).

Still, I have no real problem with the government mandating the use of plastic in places that have a demonstrable problem with alcohol-related incidents. I don’t think the plastic will do much – there are more problems caused by blokes getting into a fight and kicking each other in the head – but maybe the threat of having to use plastic and the potential loss of business that may come of it will get a subsection of irresponsible publicans to actually enforce the Responsible Service of Alcohol, rather than pour cheap, flavourless alcohol down their patrons throats and count the cash afterwards.

No Heineken, no sense of humour

It's probably because they "develop their portfolio of brands" rather than "brew beer" that makes the multinational malt-derived alcohol companies such a humourless bunch, but this is pretty heavy-handed and petty even by their standards.

Heineken cracks down on tiny Swiss "Keineken"

(AP) – 10 hours ago

AMSTERDAM — Swiss police have seized 1,000 bottles of locally made "Keineken" beer after the Dutch beer giant Heineken NV complained its brand was being infringed.

The name "Keineken" appears to be a pun in German meaning "No Heineken."

Heineken spokesman Jeroen Breuer said Tuesday a judge in the Swiss canton of Obwalden ordered police to seize the brew after agreeing Keineken infringed the Heineken brand.

Breuer said Heineken doesn't consider the size of its opponents when its brand is being misused.

"Whether the name is a joke or a way of getting publicity — those are questions for them to answer," he said.

A note on Keineken's Web site complains that foreign companies have "swallowed" all Switzerland's independent brewers.

"Our name says it all: Keineken."

While I'm at it with Heineken, what is it with this ad:

[youtube=http://www.youtube.com/watch?v=l-NfrBgYIEQ]

Apart from creeping me out, I'm not quite sure what it says about their beer...or about women. I'm gratified to see that I'm not alone.

At least Fosters do make truly great ads.

And before I finish with Heineken, these are an interesting read too...

Price -v- value

An interesting post from US writer Jay R. Brooks on the concept of price versus value.

I regularly hear beer lovers complain about the cost of craft beer compared to even a similar style of beer from Matilda Bay and James Squire as if the smaller craft brewers are gouging  our pockets just because we love good beer and going home at night to count their riches. I am yet to see a small brewery owner driving around in a BMW or Mercedes...people who complain about the cost of craft beer forget that everything that small brewers buy costs an order of magnitude more for a small brewer than for a large brewer because of scale...bottle, labels, malt, transport, everything. Small breweries close with monotonous regularity - and not just because, as I have heard some big brewers suggest, they make bad beer or are bad businesspeople.

No one likes to pay more, but if all that we look at is the price on the sticker and not what's in the bottle that we're buying, then we can only blame ourselves when we only have a small number of brewers and no variety of beer. Same for where we shop. If we only look for big chain super specials - which are often beers sold as loss leaders below cost - rather than be willing to pay a few dollars more at a bottleshop where the staff actually know something about beer, are willing to get in the beers that you want and stock an interesting and diverse range, then we can only blame ourselves when there are only chain stores selling only beer from the big suppliers.

I know it's not that easy, and a willingness to pay a few dollars more won't guarantee the viability of independent small brewers and bottleshops...but it's a start.

Give us back our haka

Irony has wonderful timing. In my post about DB Breweries' trademarking of “saison” and “radler” I posed a question to the NZ Intellectual Property Office about how they would regard a foreign trademarking of a New Zealand cultural symbol. Today I read that an English soccer club is to perform a flippant haka before its season-opening game this week, despite legal protests that it insults Maori.

While I am very sympathetic to the sensitivities around the issue, I hope that those in NZ who oppose the use of the “bastardised” haka “because it disrespects their heritage” wholeheartedly join in SOBA’s call to boycott DB. Let’s face it, the Monteith’s Radler is the beer equivalent of the Spice Girls doing the haka.

Amazingly, in a country that permitted the trademarking of descriptive beer names, the Intellectual Property Office rejected the trademarking of the haka in 2006 by the Ngati Toa people, the people who had such a strong moral claim to ownership to it that it was recognised in a $300 million treaty.

They gotta pay for the ads somehow...

[youtube=http://www.youtube.com/watch?v=ZIdDLWNtfHA] The play it well Fosters. Their new beer ad was a huge hit (and deservedly so…though I am reminded of this story from The Onion and think that maybe Fosters should quit the beer market to concentrate on ads).

But in all the fuss about the ad for the beer, they managed to squeeze out a media release announcing they have again reduced the alcohol content in VB…

VB Remains Great Value

Melbourne, 01 July 2009

VB remains great value, retaining its wholesale price unchanged on stubbies and cans despite Federal Government excise increases and rising input costs.

With bi-annual CPI-indexed excise increases applying from 1 August and in the face of rising input costs including malt and hops,  VB will hold its wholesale price in stubbies and cans, through tough economic times. VB will reduce alcohol-by-volume from 4.8 to 4.6% from August to fund this.

"With a microscopic change in alcohol content, VB will come in line with most Australian mainstream beers", said VB Group Marketing Manager, Paul Donaldson. "The beer tastes exactly the same, has the same standard drinks, and offers better value to stockists."

"We're investing behind the brand with one of Australia's biggest ever beer ads - VB Regulars - launching next week", Paul said.  "VB is Australia's favourite beer and we're making sure it remains the real Australian beer.

Talk about making it a positive: despite the Government, the cost of ingredients and economic conditions - not to mention the cost of the huge ad we're unveiling next week...

This is becoming an annual event, following on from the move in July 2007 when Fosters cut the alcohol-by-volume from 4.9% to 4.8%, and a similar move by Castlemaine Perkins in July last year to reduce XXXX Bitter to reduce their ABV to 4.6%.

While this has generated considerable media coverage and all sorts of mainstream debate about whether the flavour will change don’t expect too much different. Even when the alcohol was around the 4.9% ABV, the flavour profiles were trending light. It reminds me of an article by Rory Gibson in 2006 when Castlemaine Perkins launched the short-lived Special Brew…

Brent Wright, XXXX's head brewer and the creator of Special Brew, says the beer was designed to attract those that inhabit “the night-time zone”.

“We've done a lot of research which identified a niche market for XXXX, aimed at the younger crowd who are essentially impervious to mainstream advertising,” Wright says, which explains why Special Brew had such a low-key launch at the end of November.

“These people go out to a bar and they tend to drink something with more taste to it, like wine, spirits or the RTD (ready to drink) cans.

“They don't want to have too many -- they might have five or six drinks a night -- but they want to taste them.

“XXXX Gold is a beer you can drink a lot of but it has no taste memory. Special Brew is a step-up in flavour.''

Although it still uses the Golden Cluster hops and special yeast that its older brothers are made with, the Special Brew clocks in at 6.5 per cent alcohol, is a darker colour and carries more bitterness and fullness.

Although comparisons are odious to brewers who put a lot of effort into creating what they have every right in thinking is a unique beer, Brent names James Squire's Golden Ale as a drink that shares similar characteristics.

“I can still remember the original XXXX, which had a lot more bitterness and bite than the beer we have today. Special Brew reminds me of that,'' Wright says.

“It is a challenging beer, hoppy and malty, and we are proud of it.''

If it doesn't make an impression on the market, it may disappear into the "good idea but no one wanted it'' bin.

When asked if it was a permanent fixture on the XXXX menu or just a fishing exercise by the marketing department, Wright wouldn't say.

“If it shows stickability Special Brew is here to stay,'' he says. Given Wright spent a year perfecting it he has his fingers crossed that all his 20-year-old son's mates get a taste for it.

There is so much going on in this article that I want to comment on (which is why it immediately leapt to mind) but the phrase “no taste memory” just screams “tasteless” and the sentence “I can still remember the original XXXX, which had a lot more bitterness and bite than the beer we have today'' . Just says it all. Obviously stickability wasn't one of its attributes as it sank pretty quickly.

These mainstream beers are going the way of water anyway as brewers frantically try and chase a generation raised on sweet, fizzy drinks for whom bitterness holds no attraction. It’s not about quality (at least in terms of being ‘good’ as opposed to ‘consistent’), it’s about marketshare. And they are businesses afterall. They will be here in some form of multinational megacorp long after many of the great little craft breweries springing up today have folded because their reasons for being are so different. These breweries have been around for so long because their "portfolio of brands" is just the means to make a return for shareholders. They don’t really care what those fast moving consumer goods are so long as they are moving.

The mindset is just confirmed when you see someone with Chuck Hahn’s standing in the beer community, someone who I greatly respect, saying things like:

"What we do to lighten the beer up is use three to 30 percent cane sugar to make the beer thinner and more thirst quenching," he told ninemsn.

"It's more refreshing on a hot day than German beers — it's brewed for our climate."

"Nothing's more natural than cane sugar," he said.

"There is no sugar left in the beer, it is fermented out by the yeast."

But while Ms Pavoni pointed out that German beer contains less calories than full cream milk or grape juice, Mr Hahn said it was harder to drink Bavarian beers in large amounts because they are richer in flavour.

"With richer tasting beer you don’t drink as much," he said.

With up to 30% cane sugar being used in mainstream beers dropping the ABV back .2% just means a little less of the cane sugar, which is just there for alcohol because it adds nothing to the body or flavour anyway. It is what gives these beers their “sessionability”. No one will notice the difference, except maybe the sugar cane farmers. Which, returning to VB, makes it interesting that nowhere in the discussion about input prices is sugar mentioned, although they have increased over the past 12 months.

As for the phrases “They don't want to have too many -- they might have five or six drinks a night” and  "With richer tasting beer you don’t drink as much," I’ll leave them to the anti-alcohol campaigners to comment on. It’s a separate issue, but if you want to know who painted the huge target on the beer industry for the neo-prohibitionists to aim for, you don’t need to look much further.

Trademark or beer style?

I wrote this article for today’s The Punch where I have a regular beer column. To be honest, I felt a little conflicted at first about SOBA’s call to boycott Monteith’s but thought I should investigate the issue a little further because SOBA aren't a bunch of reactionaries automatically anti big breweries.

On the one hand I have really been enjoying their Doppelbock Winter Ale this winter (even if bocks and doppelbocks are traditionally lagers) and have been encouraging others to try it even recommending it in a previous Punch article, on the radio show and featuring it at a number of Good Beer Lunches and other beer appreciation events. On the other, DB Breweries’ act of registering names that they knew were traditional beer styles as trade marks is a cynical corporate act that hurts beer by preventing other brewers from using the legitimate names of beer styles to describe their product. DB knew what they were doing and their sole argument justifying their actions  is they claim to have invested heavily in their brands and so are entitled to protect them. Except that "Monteith’s Saison" or "Monteith’s Radler" or "Original Crafted MONTEITH'S Strong & Malty Bock WINTER BIER" are brands (although as the article makes clear, not even the first two are trademarkable in Australia). Radler and saison by themselves are styles.  Following their logic, the way they are promoting the beers and talking up their history and origins they want to cash in the history and evolution of the tradition of these styles - the hard work and intellectual property of the people who actually created the styles - but deny their use to other New Zealand brewers. What they have done essentially comes down to saying “we were first to the door so we are entitled to slam it behind us”. Simple, except in the eyes of the law and empty corporate suits.

In researching the article I emailed questions to both Dominion Brewery DB Breweries and the Intellectual Property Office of New Zealand. I wasn’t able to include much of their replies in the actual article, but for completeness here are their answers in full. (I have to say that the Senior Communications Advisor from New Zealand’s Ministry of Economic Development was very helpful and her answers very complete - and informative about trade mark law).

So, as conflicted as I feel supporting a call for a boycott of a beer that I have been singing the praises of until now, I'll get over it. This sort of crap can only hurt beer by making it harder to promote good beer and educate the public about something other than bland lager. If a brewer can't name a beer after its style then that's just wrong...especially when the trademark owner bastardises the style as they've done with Radler (although they're not alone there). Even if Dominion DB Breweries was legitimately able to register the trademark - and the court case will decide that - it's bad for beer and bad corporate citizenship.

If you agree, let them know here. It seems that it's the only way a market driven business will be swayed.

Ministry of Economic Development's responses:

Regarding your inquiry about trade marks, I hope the following explanation about the process surrounding trade marks is helpful.

The trade mark system, established under the New Zealand Trade Marks Act 2002, generally has three stages in which concerns about a trade mark can be raised: examination; opposition; and invalidity.

1. As part of the examination process, the Act requires IPONZ to consider the eligibility of a mark for registration at the date on which it was applied for. This would include conducting a search of the New Zealand trade marks register to determine whether the trade mark applied for is confusingly similar to another trade mark already on the register and conducting research into the meaning of the trade mark applied for in New Zealand at the time of filing, including whether at that time New Zealand consumers would have understood the trade mark as describing a characteristic of the goods or services for which registration is sought and whether other traders would have a legitimate need to use that trade mark in connection with their own similar goods or services. If no concerns are raised by IPONZ, or the applicant’s written response satisfies IPONZ that its initial concerns in relation to the application should be withdrawn, the trade mark will be accepted and published for opposition purposes.

2. Opposition is a way of challenging a trade mark once it has passed through the examination stage and has been accepted for registration. This mechanism allows anyone who thought the trade mark should not be registered to lodge an objection opposing registration of the trade mark. If no opposition is lodged, the trade mark will proceed to registration.

3. The invalidity process is a way of challenging a trade mark once it has been registered. An invalidity proceeding has the extra hurdle of a party having to show why they are aggrieved by the registration.

The trade mark system is designed to accommodate conflicting views and to provide workable processes for the resolution of the opposing interests and views of different parties.

Regarding the "radler" case, it is currently before the hearings office and as such, it is inappropriate for us to comment on it. Nonetheless I hope this information is useful.

Response 2 (in response to follow up questions which are included)

• You mention that there is an opposition stage. How is the registration advertised so that interested businesses and consumers may learn of the trademark and object if needed?

When an application for registration of a trade mark is accepted, the application is advertised in the New Zealand Patent Office Journal. The Journal is published on a monthly basis and is available to search and download from the IPONZ website at www.iponz.govt.nz. Any person who wishes to oppose the registration of the trade mark can do so within three months from the date of advertisement in the Journal.

• Without dealing specifically with the radler case, are specialty trade terms that may not necessarily be widely known to NZ consumers but are used internationally within a specific industry - including commonly overseas - trademarkable?

When assessing whether a term is eligible for registration as a trade mark, IPONZ will determine how the term would be understood by New Zealand consumers at the time the application was filed and whether other traders would have a legitimate need to use that term in connection with their own similar goods or services. As part of that determination, IPONZ may conduct a search of the internet in order to assess whether the term is commonly used overseas within the trade in question. That information is taken into account and is a factor when determining whether other New Zealand traders should be free to use the term.

• The word 'Saison' is trademarked in New Zealand. It is a French word meaning season and has been used to describe a specific Belgian style of beer for over 150 years. What would the NZ Government's attitude be to a distinctly New Zealand product or name, or a even Maori word or symbol, being trademarked in a foreign country preventing NZ businesses from exporting their product to that country.

Trade mark rights are national rights – It is up to each country’s domestic laws to set out the terms and conditions for the registration of term/word/symbol etc as a trade mark. Registrability is assessed on the basis of what terms consumers and traders understand in that country. It is possible for foreign terms to be registered as trade marks in any country, provided the term is capable of being distinctive for the goods and service for which it is registered. Just because the term may be considered generic descriptor for a particular good or service (or incapable of being distinctive) in one country does not automatically mean that it is generic in all other countries of the world. Hence, foreign words are registered in New Zealand as trade marks or part of a trade mark, just as English words are registered as trade marks in non-English speaking countries.

The policy issue here is that in foreign jurisdictions, such as Germany, distinct New Zealand or Maori words and symbols, may be considered to be sufficiently unique (non-common) to be able to distinguish the goods/services of one trader from those of another, therefore meeting the criteria for trade mark registration. At present, there is no international legal standard to prevent these circumstances (trade marking of common words in other linguistic jurisdictions) from occurring. It is a matter of addressing the issue through the national laws of the country in question and using their criteria and exceptions as a basis for objection to the competing foreign trade mark or for defending a perceived infringement.

DB Breweries Limited's Communications Manager's responses

Response 1

• DB has trademarked the name "Radler". I believe that the brewery has also trademarked the name "Saison". Do you accept that these are internationally recognised names for beer styles?

For your background information, Monteith’s Radler was first produced by the Monteith’s Brewing Company in 2001.

Monteith’s, which dates back to 1868, was looking to add a limited edition release to its portfolio after the huge success of Monteith’s Summer Ale. The team decided an appealing citrus infused full strength and full flavoured beer would fit well with the existing Monteith’s variants. The brand name ‘Radler’ was chosen because the team wanted something distinct and interesting. At this time, the term "radler" had no meaning to ordinary New Zealand consumers.

A beer mixed with lemonade is a shandy in New Zealand.

In 2003, two years after Monteith’s Radler was launched, the Monteith’s Brewing Company applied to The Intellectual Property Office of New Zealand (IPONZ) to trademark the brand name ‘Radler’. This application was granted.

Yes, DB Breweries and Monteith’s are aware the term ‘Radler’ is used overseas. But our application to IPONZ was successful because at the time, the term ‘Radler’ was not in common usage in New Zealand and because it was specific to Monteith’s.

In January this year it was brought to DB’s attention that Dunedin-based Green Man Brewery has released a beer under the name Green Man Radler. DB wrote to Green Man asking them to respect our registered trademark rights .The company agreed and placed stickers on its bottles replacing the trade mark "radler" with the word ‘Cyclist’.

A few months later the trademark issue was raised by SOBA (the Society of Beer Advocates). DB Breweries received notification from Hamilton lawyers James and Wells that SOBA had applied to have the trademark ‘Radler’ declared invalid on behalf of SOBA through IPONZ. This process is underway and is likely to take a further three to four months.

• Has DB attempted to trademark any of the style names: bock, doppelbock, porter, winter ale, tripel or pilsner? If so, which. If not, why given that you brew these beer styles and have made a significant investment in these beer brands?

Monteith’s currently produces Monteith’s Black; Monteith’s Celtic; Monteith’s Golden; Monteith’s Original; Monteith’s Pilsner as well as two seasonal releases: Monteith’s Summer Ale and Monteith’s Dopplebock Winter Ale. We obviously make our own decisions regarding registration of trade marks based on the investment in them and other considerations. We protect each of our variants as we consider appropriate. We also have a trade mark registration for SAISON dating back to a seasonal release in around 2001.

DB Breweries trademarked “Radler” as a reflection of the significant investment it had made and the brand recognition we had achieved from 2001 until 2003. This investment continues. The trade-marking of brands is standard business practice worldwide.

• I have seen comments from the brewery defending its right to protect it's trademark, but is it appropriate to trademark names that are identified styles of beer? Isn't this exactly the same as a New Zealand winery trademarking the name "Champagne" for a sparkling wine?

As we understand it, the term Champagne is protected by the French and can be used only by producers from a specific grape growing and wine producing region. There is no comparison between these situations in this regard.

• Would the DB trademark prevent a German-brewed Radler beer from being imported into NZ, or a Saison such as Saison Dupont? Has DB ever enforced its rights in respect to imported beers in this way?

DB Breweries owns the trademark “Radler” in the New Zealand environment. A trade mark registration gives the owner the exclusive right to use the trade mark in New Zealand. That means no one can produce or import a beer branded “Radler”. We have not been aware of any imported beer called “Radler”.

Response 2 (to follow up questions)

• You indicated that you weren't aware of any imported beers using the name Radler. Are there any imported Saisons available in NZ? For example Saison Dupont. Has DB ever exercised or sought to exercise its legal rights in relation to imported or domestic Saisons?

No, we are not aware of any commercial quantities of imported beer using the name Saison in NZ.

• Has DB made application to register any of the other style names that you produce (eg Doppelbock)

We have trade mark registrations which cover aspects of most of the Monteith’s beer variants which we produce and we assess each on a case by case basis. I don’t think any of the registrations include the term Doppelbock.

• Appellation d’origine contrôlée notwithstanding I think the champagne analogy is relevant, but I will rephrase it. A decade ago the wine style Pinot Grigio was barely known and certainly not in common use. Given that DB neither invented the Radler style nor its name and at best popularised it in the last few years, how does trademarking the Radler name differ from the situation had a wine maker trademarked Pinot Grigio a decade ago?

Pinot Grigio is a grape variety. DB has not registered a variety of hops or barley as a trade mark. There is no real analogy in that respect. As mentioned earlier, ‘Radler’ was chosen because the team wanted something distinct and interesting. At the time, the term “radler” had no meaning to ordinary New Zealand consumers which is why the trade mark was granted.

A tale of two ad campaigns

I just found this draft of a post that Iwrote months ago never got around to posting for some reason...maybe I was worried about sounding too negative all the time. Still, I enjoyed reading it again so though I'd post it anyway. I don't think I finished it but you'll get the point... No matter how much of a beer purist you are, beer and marketing are pretty much interwoven. There's no point making the best beer in the world if no-one buys it, and even if people buy it now, with so many beers hitting the shelves every week there is no guarantee that they will buy it next week instead of moving on to the shiny new thing.

Even allowing for that truism, beer advertising generally shits me. Most beer advertising is generally designed to push buttons with the audience so the beer drinker identifies with the brand attributes the marketer tries to wrap around the product rather than try and sell a beer.  (NB to speak to a beer marketer you wouldn't actually know what they sell...they don't talk about "our selection of beers", they talk about their "portfolio of brands"). This is generally because the vast majority of beers consumed in Australia are lagers and if you could DNA test them you would find there is a greater genetic difference between a kennel full of labradors than between 80% of beer consumed in Australia.

Consequently they can't really talk about their beer other than in the vaguest possible way by saying how "dry", "crisp", "refreshing" or "drinkable" it is and how "little aftertaste" it has (all of which are ways to say "little flavour" without making it sound like a negative).

• I'm a Loyal Queenslander - drink XXXX,
• Had a win at the races and want to show I'm cashed up - Crown Lager,
• I'm looking after myself but still drink beer - anything low-carb,
• I'm a man of discernment who clearly thinks deeply about my buying decisions - Stella, Heineken, Asahi, Becks.
• I'm a man of discernment who clearly thinks really deeply about my buying decisions and I'm different from the pack - Peroni (until it becomes too popular)
• I don't like the flavour of beer but don't want to drink wine coolers or RTDs and still want an alcohol-induced buzz - Corona.

I'm no mathematician, but if I was to express the above observations about beer and advertising using mathematical symbols designed to make it sound scientific and elevate it beyond just my opinion, I would express it this way...

if α = β

and Ω = β

then α = Ω = β

Where  α = flavourless; Ω = pandering stereotypes; β = broadest appeal

Which is why 90% of the beer sold in Australia is the same thing, with just the label and ads marking the difference...