A health-conscious beer developed by two Australian comedians will be allowed to coexist alongside a rival product with similar branding after a Sydney judge dismissed a case alleging misleading or deceptive conduct.
Brick Lane Brewing took the producers of Better Beer to the Federal Court, seeking to protect its low-alcohol Sidewinder range which was launched via media release in July 2021.
Just five days later, an announcement to the ASX revealed another product — a no-carbohydrate brand known as Better Beer, through a company part-owned by social media influencers Matt Ford and Jack Steele.
The case led Justice Angus Stewart to closely consider similarities and differences in the branding and packaging of each product — which each feature off-white cans and curving striped designs with blue and shades of orange and yellow.
Brick Lane Brewing argued the packaging and promotion of Better Beer products was capable of causing consumers to mistake the brands for one another, amounting to misleading or deceptive conduct under Consumer Law.
The court heard the public announcement of Better Beer and an Instagram post in late July 2021 "immediately came to the attention of Brick Lane".
The company's head of brand and innovation was said to be "spewing" and vowed to "blow them outta the water with a cracking, fully-integrated comms plan".
The respondents argued that Sidewinder products were no or low-alcohol products, as opposed to their own full-alcohol but low-carbohydrate products, which targeted a different segment of the beer market.
To illustrate confusion, Brick Lane pointed to an incident where a company representative at a 2022 craft beer festival in Sydney was approached by a male cleaner who remarked: "Woah, that's so great that you guys from Better Beer are doing low-alcoholic options now."
Brick Lane also pointed to a second incident, in January last year, involving a Dan Murphy's employee taking the company's area manager to a display of the Better Beer products in a Gold Coast store.
In a written judgement, Justice Stewart said those two people were "at least momentarily confused" between the products.
The judge heard detailed evidence about when each company began developing and designing the products.
He found each party developed a "get-up" for a new beer product entirely independent of each other, and those products were presented to and promoted to the market only days apart.
"The happenstance of Brick Lane having won the race — a race that neither it nor the respondents knew that they were in — by only a few days does not give it the right to stop the respondents from using their get-up or to claim damages," Justice Stewart said.
The judge said the hypothetical reasonable beer consumer must be taken to be someone who takes reasonable care of their own interests.
"That includes paying enough attention to what they are buying in a crowded and bewildering market so as to be able to distinguish between low-alcohol and low-carbohydrate products and to notice the names of the relevant products," Justice Stewart said.
"I do not see that consumer fleetingly taking something from the shelf, or clicking on an icon, because of some similarity of colouring and design that they might remember from a previous purchase."
Brick Lane's case was dismissed, and the judge said he was not aware of any reason why Brick Lane should not pay Better Beer's costs, in accordance with the usual rule.
