Nick Xenophon: Why am I putting my political boots on? It’s about protecting little Aussie battlers

When an Aussie battler is being mugged by a US corporate gorilla, our out-of-touch government is dreamin’ if they think I’ll let it blow over, writes Nick Xenophon.

What I’m about to tell you is a real-life version of that iconic hit movie The Castle.

Except, it’s on a global scale, and forces us to ask who we are as a nation and what we stand for. It has also prompted me to consider making another run at the Senate at the next federal election.

By now you’ve probably heard of the David v Goliath battle between Sydney ugg boot maker Eddie Oygur and global footwear giant Deckers.

Eddie Oygur of Australian Leather at the Lidcombe factory.

Ugg boots have been around since the 1960s, a uniquely Australian creation made to keep surfers’ feet warm after catching waves. In the late 1960s ugg boots found their way across the Pacific to the US, where they were a hit from Malibu to Maine.

Then the proverbial hit the fan in the 1990s when “ugg” was trademarked in the US and Deckers bought the trademark in 1995. This is despite the fact that, under international trademark law, a generic name in one country can’t be trademarked in another – it’s called the doctrine of foreign equivalents.

Think Champagne from France, Feta from Greece and Sake from Japan. But somehow – wrongfully – Deckers locked up the ugg trademark in 130 countries and become a $10bn corporate gorilla that has aggressively pursued anyone that sells ugg boots to countries other than Australia and New Zealand. Ironically, their ugg boots are made in China and Vietnam, often using non-Australian wool.

In 2016, Eddie was making thousands of pairs of ugg boots each year (“how’s the serenity”) when he was sued by Deckers for selling 13 pairs of ugg boots into the US through his australianleather.com.au website. Four of those pairs were bought by agents of Deckers.

Most people sued by Deckers roll over. Not Eddie. This gutsy guy has spent and mortgaged everything he owns – more than $1m to fight back.

Former South Australian Senate powerbroker Nick Xenophon at Northside Souvenirs at Pooraka. Picture: Roy VanDerVegt

In May 2019, Eddie was dragged to a US Federal Court jury trial in Chicago. He lost – and was hit with more than $3m in legal costs and penalties. But Eddie has kept fighting. He’s now headed to the US Supreme Court.

This case has huge implications. In a nutshell, Deckers is arguing – incredibly – the doctrine of foreign equivalents doesn’t apply to English-speaking countries. Que?

To quote my legal mentor from The Castle Dennis Denuto “the vibe” tells me they’re wrong. And so does Eddie’s appeal lawyer Seth Waxman – a former US Solicitor-General.

Before Eddie’s case went to court in 2019, I pleaded with the federal government to support Eddie, because winning this case would mean all Aussie ugg-boot makers could finally sell their boots around the world – an $8bn a year market. And in the process create about 4000 jobs.

After being rebuffed for help in 2018, the government, through Attorney-General Michaelia Cash, approved about $200,000 to fund the legal team for the appeal (I’m being paid in ugg boots and the occasional kebab). So, good on the government for eventually helping out.

But there’s a catch – Waxman wrote to Attorney-General Cash six weeks ago saying the case was a good one, but the US Supreme Court only hears 80 cases out of 10,000 applications a year.

To get their attention, Waxman says, a “friend of the court” brief filed by the Australian government could make all the difference to be one of those 80 cases. Bizarrely, our Attorney-General has refused to take that small extra step.

The deadline to file the brief is the beginning of November. The government has only a few days to change its mind to allow lawyers to file the papers.

So, my threat to make a comeback to the Senate is based on this simple principle: If a government is so out of touch that it won’t stand up for an Aussie battler like Eddie, to bring an Aussie icon back home (and with it thousands of jobs), then what else is it out of touch with?

Because if the government thinks this will blow over, they need to heed the words of the great Darryl Kerrigan: “Tell ’em they’re dreamin’”.

Nick Xenophon is a former SA senator, and part of the ugg test case legal team.

Sign the petition at change.org/uggisaustralian