NSW start-up Zig Zag Brewery has won a second trade mark dispute with Thunder Road Brewing Company.
Zig Zag was founded this year by Malina and Adrian Schindler in Lithgow, where they have run a spring water business since 1991.
They have been seeking to register and reprise historic trade marks relating to the original Zig Zag Brewery, later known as Terry’s Brewery, which operated on the same site from 1893 until the 1950s.
One of these trade marks, Terry’s Mountain, was previously registered by Thunder Road’s IP holding company – Intellectual Property Development Corporation (IPDC) – in 2008.
The Schindlers recently succeeded in having Thunder Road’s trade mark removed from the register, because it was not being used.
The Australian Trade Marks Office accepted that while Thunder Road had used a similar trade mark, Terry’s Mountain Spring, on growlers of take away beer, it was not “substantially identical” to the one on the register.
IPDC was ordered to pay the Schlinders’ legal costs relating to the proceedings.
Zig Zag battle
The November 14 ruling is the second in favour of the Schindlers involving trade marks relating to the old Zig Zag Brewery that have been contested by Thunder Road.
In June 2013 the Schindlers successfully blocked a bid by IPDC to register the name ‘Zig Zag’, which they argued referred to the Lithgow region where they proposed to locate their brewery, a position that was accepted by the Australian Trade Marks Office.
“The elevation and water quality in the area known as Zig Zag are particularly suited for beer making,” said hearing officer Iain Thompson.
“Accordingly, the use of the trade mark on beer which does not have those attributes or origin would be misleading or deceptive,” he said.
Since the latest ruling, IPDC has applied to register three new variations of the Terry’s Mountain trade mark.
Thunder Road declined to comment. The Schindlers could not be contacted.