Davy and Gower applied for a trademark and set up a small distillery at Gower’s home.
Their range of gin, bottled in unique recycled paper bottles, made it into more than a dozen stores across the Wellington region, and the pair sold thousands of bottles.
Mothers Ruined gin distillers Helen Gower (left) and Jo Davy.
“We were going great guns,” Davy said.
Then, in May 2022, they were notified that there had been an objection to their trademark application from Energy Beverages, which owns global energy drink brands Monster Energy and Mother.
“It was a bit of a blow”, Davy said.
But the pair planned to fight, and sought help from Wellington intellectual property lawyer Kate Duckworth, who took on the case pro bono, and advised them to keep the business going.
“Kate was convinced that we would win, we’d got that historical precedent, their energy drink, Mother, is a non-alcoholic in a can. How was anyone going to be confused?
“She advised us to go ahead, get the bottles printed, launch, go to market, and so we did, but we had that trademark thing hanging over us.”
The process dragged on for three years, with delays for hearings and extensions, leading to Davy and Gower making the difficult choice to throw in the towel.
“It could have dragged on forever. If we wanted to really scale the business, having a trademark battle hanging over us was absolutely not going to help that, so we decided to call it quits with Mothers Ruined.”
Davy said the decision came with “a lot of tears and a lot of rage”, and the pair have been forced to “go back to square one”.
“We were tracking well, and we were scuppered.”
They had to destroy thousands of unused cardboard bottles that had been printed with their branding, and Davy said the whole ordeal had set them back years.
She accused Energy Beverages of using “big corporate … kind of tactics” to go after a small start-up.
Energy Beverages would not comment on its opposition to the Mothers Ruined trademark.
Mother energy drink.
The battle hasn’t stopped Davy and Gower, who plan to relaunch next year under the name Lippy Gin.
“We’re quite lippy women,” Davy laughed, saying the name was a nod to their fight with the corporate giant.
“It is back to day jobs for a bit, but still fully intending to come back with Lippy.”
They are currently looking for a contract distiller and have “grand plans” for the business, aiming to start a podcast this year to build a community before potentially seeking investment next year.
While they haven’t forgiven Energy Beverages, they say bowing out of the dispute was necessary for the business.
“It was going to stop us from being anything other than a glorified hobby business, and we don’t want to be a glorified hobby business. We want to be a major player.”
Global firm’s ‘aggressive’ strategy
Earl Gray, an independent barrister specialising in intellectual property, said the Mothers Ruined case was not the first time Energy Beverages had gone after other companies in trademark disputes.
“They have an aggressive strategy, that’s certain,” he said.
It was previously in a long legal battle with Frucor Suntory, the New Zealand-based maker of V energy drink, over Frucor Suntory’s trademark for a particular shade of green on cans of V.
After multiple court decisions, Frucor Suntory’s trademark registration was eventually upheld.
Intellectual property barrister Earl Gray. Photo / Sangro Chambers
Gray said opposing the Mothers Ruined trademark through the Intellectual Property Office, rather than simply suing the pair, was likely a strategic choice.
“It would be very, very expensive if they sued people every time they did that. Objectively, I would have been surprised if they had succeeded.
“But they probably have enough success, or scare enough people away, that they think it’s worth doing.”
He said there were two alcoholic drinks on the market with registered trademarks that included the word mother: Mother’s Milk gin and In The Name of Mother Nature, a French champagne house. Their continued existence suggested Mothers Ruined could have succeeded if the case had made it to a hearing.
“But by putting people to a lot of expense, people with deeper pockets often win.”
Ethan Manera is a Wellington-based journalist covering Wellington issues, local politics and business in the capital. He can be emailed at ethan.manera@nzme.co.nz.