In E. & J. Gallo Winery v Lion Nathan Australia Pty Limited  FCA 934, handed down on 20 June 2008, Flick J considered a claim by Gallo that Lion Nathan had infringed Gallo’s trade mark BAREFOOT, registered in relation to wine by the sale of beer under the trade mark BAREFOOT RADLER.
On the question of infringement, it was held that BAREFOOT and BAREFOOT RADLER were not substantially identical but were deceptively similar. Curiously, his Honour considered that had the comparison been between the registered mark BAREFOOT and the combination of the words Barefoot Radler and a “bare foot device” as used by Lion Nathan, no such deceptive similarity would have been found. Despite the finding of deceptive similarity, Flick J held that there was no infringement because the goods in question, being wine and beer respectively, were not goods of the same description.
Flick J also held that Lion Nathan was entitled to succeed in its application for revocation of the Trade Mark on the ground of non-use. While there were sales of BAREFOOT wine in Australia during the relevant period, the use of the trade mark by reason of those sales was not attributable to Gallo. In considering whether there were in fact any sales at all in the relevant period, his Honour rejected as inadmissible, evidence purporting to establish the offer for sale of wine at some time in the past on the basis of material obtained from the “Internet Archive Wayback Machine”.