Better Beer wins Federal Court battle

Better Beer has successfully defended itself in a Federal Court action accusing it of misleading or deceptive conduct.

In a judgement handed down by Justice Stewart, the court ordered that the case be dismissed with Brick Lane to pay Better Beer’s costs.

The case centred on the alleged similar look of Brick Lane’s Sidewinder and Better Beer’s product, which were announced within days of each other and hit the market within months.

Justice Stewart said that the products essentially built their reputations in the market side by side though concluded that, despite the applicant having got its get-up and product into the market first, Brick Lane’s claim failed.

Brick Lane argued that Better Beer’s conduct in packaging and promoting its lager and ginger beer induced or is capable of inducing consumers into error by mistaking the two and so, were false or misleading.

While both products were released at almost the same time, the Judge found that Brick Lane did not have enough time to establish its market presence.

“The essentials of what occurred in this case are that, entirely independently of each other, each side of the case simultaneously developed a get-up for a new beer product and both get-ups were presented to and promoted in the market at almost the same time – 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. That is because in the intervening period, Brick Lane had not established any appreciable reputation for its get-up,” the decision says.

The judge found that both products had distinctive names and that the “better-for-you” element would not be mistaken for Brick Lane’s lower alcohol product.

In the end, he decided that he was not satisfied “that the hypothetical reasonable consumer of beer” would familiar with Brick Lane’s Sidewinder get-up, but even if they did, they would not have been likely to be misled by the similarity of the respondents’ Better Beer get-up to the Sidewinder get-up into thinking that the products were in some way associated.

Better Beer co-founder Nick Cogger issued a statement after the decision was handed down.

“While our adversary is ‘spewing’ that we’ve been so successful, both in court and in the marketplace, it has long known that both products were developed and launched almost simultaneously,” he said.

Cogger’s statement referred to evidence cited in the judgement that, upon learning of Better Beer’s design, Brick Lane’s head of brand and innovation said he was “spewing” but that there was “no turning back now.”

Cogger described it as “… a win for common sense”.

“Brick Lane’s attempt to claim a monopoly in beer labels with an off-white background and a striped retro vibe had failed. As has its attempt to monopolise 355mL cans.

“We are happy that we can put this inconvenience behind us and that we can continue to develop the Better Beer brand.

“We will pursue our entitlement to seek costs from Brick Lane…”

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