Say It With Me Now, Australia: Beer And Wine Are Not The Same Thing, Not Even For Trademarks

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While I've done a fair share of posts here on the topic of trademarks and the alcohol industries, one of the most frustrating sub-types for those posts is the sort where the dispute exists between one wine maker and one brewery. There appears to be some misconception that alcohol is one big market or industry for the purposes of trademark. While it is true that far too few countries explicitly recognize that wine and beer are different markets in their trademark laws, most of the countries do still have customer confusion as a key test for infringement. And, I feel it's safe to say, the general public can tell the difference between beer and wine, and typically know enough about each's crafters to tell their branding apart.Now the general public in Australia is facing this test in a way, with a large liquor chain trying to oppose the trademark application for a craft beer gift service over a wine trademark it holds, but doesn't seem to be using.

The Beer Drop was officially launched in October 2019, with founder Evan Reitano filing to register its trademark in June 2019.In January this year Coles opposed the trademark, saying it was “contrary to law” as it had substantially identical or deceptively similar trademarks – in this case, ‘Wine Drop’ which is currently not in use, and whose web page redirects to First Choice.“Our Wine Drop subscription service was a popular service for our First Choice customers and the www.winedrop.com.au website currently redirects customers to the First Choice Liquor webpage,” a Coles representative told Brews News.

Reitano undertook a small business course before launching The Beer Drop and said it was invaluable to his IP experience so far, but what really stung was the references to ‘bad faith’”, he said.“I read over it and I laughed it off at first, I had never heard of the Wine Drop, the first thing I did was jump onto Google. Being a Coles Liquor business you’d think it would be in the top one or two search hits which it wasn’t, and I can’t find any trace of it. It’s strange because they’ve said in their opposition that they’ve built a reputation with that brand, it feels like they expected me to read it and say shit, it’s Coles Liquor, let’s back off."

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After Seven Years And A US Supreme Court Victory, Tyson Timbs Is On Step Closer To Finally Getting His Car Back

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Tyson Timbs went all the way to the US Supreme Court to get his forfeited Land Rover returned to him. Represented by the Institute for Justice, Timbs took his case through every level of the Indiana court system before finding relief in the nation's top court. Seven years after his vehicle was seized during his arrest for heroin dealing, he's still waiting for the cops to return his car.The Supreme Court said the seizure of a $42,000 vehicle over a crime with a maximum possible fine of $10,000 was disproportionate and violated Constitutional protections against excessive fines. Timbs ultimately only paid $1,200 in fines and spent one year on home detention for his crime, which involved two controlled heroin sales to undercover cops totaling less than $400.The state argued it had never adopted the excessive fine clause of the Eighth Amendment, despite most states having already adopted this clause more than 70 years ago. Supreme Court Justice Gorsuch seemed pretty exasperated at the state's attempt to talk around the issue to maintain ownership of a car it had seized in 2013.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?MR. FISHER: Well, again, that depends.JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.MR. FISHER: Right.JUSTICE GORSUCH: And here we are in 2018 -­MR. FISHER: Right.JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

Timbs remains on probation and has had no probation violations. Furthermore, no evidence was presented to suggest that Timbs has committed any crimes Sinée the date of his arrest in 2013. While on probation Timbs has participated in the Grant County Substance Abuse Task Force, shared his story and insights with a gubernatorial drug task force, and on at least one occasion agreed to request by the Grant County Probation Department to help with another probationer. In an effort to remain clean, Timbs also participated in Narcotics Anonymous and Alcoholics Anonymous Programs.

Being without vehicle has made it more difficult for Timbs to reintegrate into society and earn a living. This is true for virtually all offenders. Having a car is almost indispensable to maintaining a job in Indiana: only 0.9% of Hoosier workers get to and from their jobs using public transportation...Cars are crucial to maintaining employment in most parts of Indiana and employment is crucial to reducing recidivism. According to a publication on the Indiana Department of Corrections’ website, unemployment is one of the top two predictors of recidivism in Indiana. Automobiles are also vital to offenders like Timbs who are suffering from substance abuse disorders. Routinely, these offenders are ordered to participate in drug and alcohol treatment, and cars are usually utilized to attend addiction services and treatment programs located in and around Grant County.

The forfeiture of the Land Rover did nothing to remedy the harm caused. Often, the illegal sale of narcotics causes physical and emotional harm to users and negatively impacts families, and coworkers. It also overburdens the justice system and strains our healthcare system. However, Timbs’s specific crime was victimless. It caused no actual harm as the sale he made was to undercover officers; hence, the heroin was never used.

He was no drug “kingpin," a fact recognized by the State when it agreed that the minimum sentence of six years with only one year executed on home detention was appropriate. In addition, there is no evidence in the record that Timbs was engaged in trafficking narcotics beyond two controlled buys. He simply does not fit into the class of persons for whom the statute was principally designed: individuals who regularly sell narcotics to earn a living. Selling narcotics was not an occupation for Timbs. Instead, he sold heroin to feed his addiction. But for his addiction, there is every reason to believe that Timbs would never have sold heroin to anyone.

[The judge] ordered the Land Rover, which the state has stored in an outdoor parking lot exposed to the elements since 2013, released to Timbs immediately.

Indiana Attorney General Curtis Hill Jr. said he isn't halting his efforts to keep Timbs' Land Rover on behalf of the state.In a written statement, Hill vowed to "defend the constitutionality of Indiana's civil forfeiture laws" by asking the Indiana Supreme Court to review [Judge] Todd's ruling.

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