The battle of the beers

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Insight 21 February 2023

The Federal Court of Australia has recently ruled in favour of the creators of ‘Better Beer’ for a misleading and deceptive conduct claim, which concerned the similarities in the packaging and production of Torquay Beverage Co Pty Ltd’s ‘Better Beer’ and Brick Lane Brewing Co Pty Ltd’s ‘Sidewinder’ beer.[1]

Acknowledging that while beer lovers have “a lot to choose from, and a lot to look out for”, the Federal Court concluded that a reasonable beer consumer is likely to take reasonable care of their own interests!

Beer vs Beer

Brick Lane Brewing first issued a media release announcing its new ‘Sidewinder’ beer on 21 July 2021. Five days later, Mighty Craft made an ASX announcement that it would be partnering with Torquay Beverage Company, and social media influencers ‘The Inspired Unemployed’, to form Better Beer Co and launch ‘Better Beer’.

Shortly after this announcement, Brick Lane Brewing brought a claim against the producers of Better Beer for engaging in misleading or deceptive conduct,[2] and making misleading or false representations.[3]

Brick Lane Brewing argued that:

the promotion, sale and packaging of the Better Beer products was substantially similar to that of Sidewinder’s, and this was capable of causing consumers to mistake the brands for one another;
the similarities could cause consumers to believe that Better Beer was either associated with Brick Lane Brewing, or endorsed, approved, licensed and/or sponsored by Brick Lane Brewing; and
Better Beer’s significantly similar ‘get-up’ to Sidewinder would cause this confusion, as the packaging for both products include blue, orange and yellow stripes, off-white 355ml cans, and dark text labelling (see pictures from the judgment below).

The producers of Better Beer argued that consumers would not be confused by the two products, as they were distinctive enough from each other, and especially because Sidewinder’s zero or low-alcohol beers targeted a different segment of the market than Better Beer, whose products were marketed to those seeking full-alcohol but low-carbohydrate beers.

The Federal Court’s Decision

To decide whether Better Beer’s product was likely to mislead or deceive consumers, the Court considered various factors including:

the strength of both Torquay Beverage Company and Brick Lane Brewing’s reputations;
the nature and extent of the differences between Better Beer and Sidewinder;
the circumstances in which both beers were offered to the public; and
whether Better Beer’s creators copied or intentionally adopted prominent features of Sidewinder.

On that last point, it was acknowledged by the parties that the two designs were developed independently of each other, without one party having knowledge of the other party’s intended design, so there was no intentional copying or adoption by Better Beer’s creators of any of Sidewinder’s features.

Ultimately, the Court found that Better Beer’s creators had not engaged in misleading or deceptive conduct, and had not made any false representations regarding any association with Brick Lane Brewing.

Focusing on the reputation of the brands, and the circumstances in which they were offered to the public, the Court found that on the date of the announcement of the forthcoming release of Better Beer, “there was no appreciable knowledge amongst [consumers purchasing beer] of the Sidewinder get-up.” So, even though Brick Lane Brewing had announced the release of its beer five days earlier than Better Beer’s creators, it had not established ‘any appreciable reputation’ for its product during those five days. So, it could not be said that consumers would associate Better Beer with Sidewinder.

Turning to the nature and extent of the differences between the beers, despite Brick Lane Brewing’s arguments regarding the similarity of the stripes, packaging, and labelling of Sidewinder and Better Beer, the Court was not convinced that consumers would be mislead or deceived into confusing the two brands.

Additionally, the Court outlined that the plethora of different styles and types of beer that are available, meant that a reasonable beer purchaser is likely to be careful in making their purchases (and would not be so easily deceived as Brick Lane Brewing alleged).

Key Takeaways

This case is a timely reminder that creators and innovators should register trade marks for any distinctive features of their products or services as early as possible, with the view to securing strong brand protection, and preventing other brands from using similar marks.

If Brick Lane Brewing was the registered owner of a trade mark for the colours, stripes, and other features of its Sidewinder product, it is possible that Brick Lane Brewing could have more easily brought infringement proceedings against Better Beer’s creators for using a substantially identical or deceptively similar trade mark for a similar product. Rather, Brick Lane Brewing was left to go through the efforts of attempting to establish a strong reputation in its product to be afforded protection under the Australian Consumer Law.

If you are interested in learning more, or require assistance with trade mark protection or enforcement, please contact a member of our Digital & IP team.

[1] Brick Lane Brewing Co Pty Ltd v Torquay Beverage Company Pty Ltd [2023] FCA 66.

[2] Under section 18(1) of the Australian Consumer Law.

[3] Under sections 29(1)(g) and (h) of the Australian Consumer Law.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.