Written by Principal, Jennifer Tutty.
Last week, Torquay Beverage Co Pty Ltd (Torquay Beverage Co) who partnered with Studio Legal’s favourite comedic larrikins, The Inspired Unemployed, to produce ‘Better Beer’, successfully won a court case brought by rival beer brand, Brick Lane Brewing Co Pty Ltd (Brick Lane).
– ‘Better Beer’ is a brand of low carb beer and ginger beer.
– Brick Lane Brewing make ‘Sidewinder’, a brand of no and low-alcohol beer.
Brick Lane’s claims under the Australian Consumer Law
In this case, Brick Lane claimed that Torquay Beverage Co had engaged in:
– Misleading and deceptive conduct under section 18 of the Australian Consumer Law (ACL); and
– Making misleading or false representations under section 29(1)(g) and (h) of the ACL,
…in relation to the making, selling and promoting of certain Better Beer products in a similar ‘get-up’ to Brick Lane Brewing’s ‘Sidewinder’ products.
What is ‘get-up’?
‘Get-up’ (also referred to as ‘trade dress’ in some countries) is a form of intellectual property.
It refers to the total combination of design and other visual elements of a product’s packaging (for example words, pictures, shapes and colours). Get-up isn’t formally protected by Australian legislation like copyright, trade marks, patents or designs are.
Because ‘get-up’ is less regulated, it can be difficult for brands to enforce their legal rights when other brands copy visual a packaging. Have you ever wondered how ALDI get away with creating products that look similar to the products of popular brands? This is because product get-up is notoriously difficult to protect.
The Court’s reasoning in the Better Beer case
Circling back to the current case, whilst the courts held that the Sidewinder low alcohol beer was in the same ‘health conscious’ beer category as Better Beers’ low carb and ginger beer products, ultimately Brick Lane’s claim still failed.
This is because Brick Lane didn’t have a sufficient reputation in their Sidewinder beer get-up on the date that Torquay Beverage Co started promoting their Better Beer.
Consumers weren’t yet associating the get-up on the Sidewinder beer products with Brick Lane. Therefore, the court found that beer-buying members of the public wouldn’t be confused between Better Beer and Sidewinder.
The result? Brick Lane had no case against Torquay Beverage Co under either section 18 or 29 of the ACL.
The court also found that each product had a distinctive brand, in a different typeface, which looked and sounded different. Additionally, the products featured different types of statements on the products (i.e. low alcohol v low carb).
Therefore, despite the products’ get-up having distinct similarities, the chance of consumers choosing a Better Beer product thinking it was a Sidewinder product was low.
Written by Principal, Jennifer Tutty
Published 16 February 2023.
Thirsty for more? Read more about the case in an article by the barristers who successfully defended Torquay Beverage Co, here!
Photo from Better Beer. Shared for the purpose of reporting news.
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.