Better Beer defends against Brick Lane claims

Mighty Craft has responded to Brick Lane Brewing Co.’s allegations regarding its Better Beer product.

Torquay Beverage Company, the owner of the Better Beer brand alongside social media influencers The Inspired Unemployed, has denied the majority of the allegations made by Brick Lane in its filings to the Federal Court of Australia’s NSW Registry in late December last year.

At that time, Brick Lane suggested that the existence of the Better Beer product could cause confusion in the marketplace due to alleged similarities between the products.

The brewery claimed that the three respondents – Better Beer, Torquay Beverage Company, and Mighty Craft, which partially owns Torquay Beverage Company but does not have “effective control” over either company – made false, misleading or deceptive representations in breach of Australian Consumer Law.

Brick Lane suggested that the consumers could be confused that the two products are related in some way, and sought corrective advertising and damages in their case.

However, in a concise statement submitted on 14th February 2022, Better Beer defended itself, saying that ordinary and reasonable Australian consumers will not likely be misled or deceived into thinking that the Better Beer product is the same as or associated with Brick Lane’s Sidewinder product.

Torquay responded to a number of claims made in the initial statement by Brick Lane regarding the design and launch timeline of each beer.

Torquay suggested that while there may have been similarities, the products had distinctive brand names in different fonts and different layouts, and that many other products use similar colours to achieve a ‘retro’ effect.

The company, which brews Better Beer via contract at Cassella-owned Australian Beer Co., alleged that the use of similar colours would not be perceived by consumers as connoting an association between the parties’ respective products.

Torquay argued that the beers were aimed at different segments of the beer market, saying that Sidewinder was clearly labelled as super low alcohol, whereas Better Beer is a regular strength beer. Brick Lane had originally said that there was a “real risk of consumer harm” because of the differing abv percentages.

Reputation building

The second strand of Brick Lane’s arguments in regards to Better Beer is that it had established the reputation of its Sidewinder brand, and the entrance of a similar brand could cause confusion in the market.

Brick Lane originally argued that by at least 25th October 2021, it had acquired a reputation in Sidewinder Get Up amongst beer consumers in Australia.

It suggested that by 3rd August 2021, Sidewinder had been sold to a significant number of consumers across Australia, and by the end of the same month, thousands of packs of Sidewinder were sold through retail outlets across Australia, including via Dan Murphy’s and First Choice.

But Torquay argued that prior to the first promotion of the Better Beer product in July 2021, Sidewinder had not been sold to consumers in Australia at all and was not the subject of significant advertising or promotion, according to Better Beer’s legal team.

Additionally, it argued, by the time Better Beer sold its first products in September/October 2021, Sidewinder had been sold for less than two months, was sold in “minor” quantities in a limited number of retail outlets in limited parts of Australia, and was not the subject of “significant” advertising or promotion.

According to Better Beer’s owners, it completed and publicised the key design elements of Better Beer before they were aware, or could have been aware of the design of Sidewinder.

The brand suggested that in June 2021, Torquay Beverage Company contacted Brick Lane regarding contract brewing opportunities for Better Beer, but the brewery had responded that it did not have the capacity to assist.

The filings claim that Torquay commenced the design process for the Better Beer product in December 2020, and in March 2021, Torquay’s general manager Nick Cogger sent a design brief to an external designer requesting a can design for Better Beer, which was received on 23rd March, and resembles the final design.

Brick Lane previously argued that at the time the “impugned packaging” was adopted, the respondents were aware of Sidewinder.

The case continues, but it comes at a pivotal moment for Mighty Craft, which heavily touted the success of its Better Beer product during its half-year results presentation last week.

According to Mighty Craft, Better Beer sales reached $1.8 million in Q2, and it expects to contract brew 4 million litres of the brand in the coming year, matching the volume of all its other beer brands combined.

*timeline of events according to the respective claimant and respondent companies in their filings to the Federal Court of Australia’s NSW Registry. Dates have not been independently verified by Brews News.

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