The battle of the bastards

A Radler consisting of 50% beer and 50% cola may not sound particularly appetising, but apparently, there is a market for it.

The catchy name of BASTARD COLA probably helps. The German brewer of this product had registered the trademark in Germany, which was fortunate, because a Czech brewer recently applied for a European trademark for ‘Lucky Bastard - more than beer’, a beverage that is 100% beer.

The first question for the European Trademarks Office to consider was whether or not the use of the older trademark was genuine. The trademark owner had to prove several elements, including the place of use (in this case Germany), that the trademark had been used as a trademark, and the extent of its usage. Furthermore, the evidence had to pertain to the relevant period of use. Often, a combination of invoices, brochures, advertisements and photos of the product provide convincing proof of usage, and in this case, the German trademark owner was able to provide satisfactory evidence.

 Demonstrating use was the most difficult hurdle. Both the products covered by these respective trademarks are similar – bot in class 32 – and the trademarks themselves are similar too, so the European application was rejected based on the risk of confusion, as customers might think that the beer called Lucky Bastard could originate from the German brewer. 

The Czech brewer will still be able to file national trademark applications and to use their trademark outside Germany, but any attempt to use the trademark in Germany will run the risk of a lawsuit.

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.