The Federal Court recently ruled on a claim for misleading and deceptive conduct under the Australian Consumer Law[1] (ACL) between Brick Lane Brewing (“Brick Lane”) and the producer of “Better Beer”, Torquay Beverages Co Pty Ltd. [2]

The claim concerned alleged similarities between the packaging, labelling and advertising of Brick Lane’s “Sidewinder” beer and Torquay’s “Better Beer” as depicted below. While the Federal Court did find there were similarities between the products, Justice Stewart ultimately held the contraventions were not made out. 

Background of the claim

On 21 July 2021 Brick Lane launched the Sidewinder beer through a media release that included an image of the product. On 26 July 2021 Mighty Craft Limited announced it would be partnering with Torquay and social media influencers “The Inspired Unemployed” to form “Better Beer Co” and launch Better Beer. 

Brick Lane argued:

• Torquay’s packaging and promotion (conduct) of their Better Beer induced or was capable of inducing consumers into error by mistaking the products, therefore misleading or deceptive or likely to mislead or deceive;
• Torquay’s conduct therefore could lead a consumer to mistake the Sidewinder product for a Better Beer or believe Better Beer was associated with Brick Lane. 

The Federal Courts Decision

Importantly, Brick Lane acknowledged that the Sidewinder and Better Beer were made independently of each other and without one party having knowledge of the other’s design. Therefore there was no intentional copying. 

In considering whether consumers were actually likely to be deceived or misled, the Court considered Torquay’s conduct in the context of other surrounding circumstances, including:

• the reputation of the branding;
• the extent of differences between the Sidewinder and Better Beer;
• the circumstances in which the products are offered to the pubic; and
• whether Torquay copied Brick Lane’s product, intentionally adopting distinctive features of the Sidewinder. 

The role of reputation

Justice Stewart’s judgement emphasised that there is no presumption a hypothetical consumer is familiar with a brand’s product.  When determining if a product’s get-up is misleading or deceptive, some association in the mind of the relevant sector of the public between competing products must be established. The decision reaffirms previous authorites that if this association cannot be established, the use of a similar get-up will not be misleading or deceptive. 

Relevant dates

A contentious point in the case, Justice Stewart also clarified when the relevant date is that consumers are likely to be mislead or deceived. Brick Lane submitted the relevant date was the date the products became available to consumers, while Torquay argued the the relevant date was when the promotion of Better Beer began. 

Justice Stewart was unapologetic in rejecting Brick Lane on this issue, stating the submission “is not supported by authority or logic”.[3] The conduct of Torquay was ruled to not be dependant on the availability of the product for sale, but when public facing activities using the get-up commenced. 

Relevant class

In the decision, Justice Stewart did find that the Sidewinder and Better Beer were in the “health-conscious” segment of the beer market. However, the ruling also provided the beer market is highly saturated, with a large variety of options for consumers. It is therefore more likely that a reasonable purchaser of beer would be less likely to be deceived or mislead by the similarity in the products, instead taking a more careful consideration of their purchase. 

Ultimately, the conduct of Torquay was found to not be misleading or deceptive and that it did not falsely represent any associations with Brick Lane’s products. Hillhouse Legal Partners has experience in dealing with matters relating to intellectual property. Please contact us by email or on 07 3220 1144 should you be seeking further guidance on trade mark or any other intellectual property matters.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

[1] Australian Consumer Law ss18, 29(1)(g) and (h)

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

[3] Paragraph [43]