A win for the little guys.
Popular Australian influencers, Matt Ford and Jack Steele of The Inspired Unemployed have had a major win in court in regard to the 1970s-inspired can design of their popular alcoholic beverage, Better Beer.
The brainchild of Torquay Beverage Co’s Nick Cogger, the zero-carb and zero-sugar lager – which partly owned by The Inspired Unemployed (20% stage each) – came under fire in 2021 when rival brewer Brick Lane Brewing launched proceedings against Better Beer over the packaging for its zero-carb beer and lower-sugar ginger beer, alleging it had ‘engaged in misleading or deceptive conduct’.
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Brick Lane – the Victorian company behind Sidewinder Hazy Pale low-alcohol ale whose stakeholders include Billy Slater, Dan Carter, Eddie McGuire and Mick Molloy – alleged that similarities in the designs of the Sidewinder and Better Beer cans were capable of ‘confusing consumers about whether the products were related’.
Brick Lane argued the off-white colour, retro design with stripes and 355ml size of both Sidewinder low-strength beer and Better Beer’s full-strength lager confuse customers and would lead them to believe they were the same product or made by the same company.
Alas, the little guys have come out on top. In orders delivered on Wednesday morning, Federal Court Justice Angus Stewart dismissed Brick Lane’s lawsuit.
In a judgment published this week, Stewart revealed that the Sidewinder range was announced publicly about five days before Better Beer in 2021. The Sidewinder range was launched by a media release on July 21, 2021 while Mighty Craft – a listed company that owns a majority stake in Torquay – announced to the Australian Securities Exchange on July 26 that year that it had joined with Torquay and The Inspired Unemployed to form Better Beer Co. Both media releases contained images of the beer cans.
“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,” Stewart’s judgment reads.
“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.”
“I nevertheless accept that there are distinct similarities between the relevant get-ups, noting that the cluster and case packaging offers the clearest comparison of the get-ups and is the form most likely to be seen by consumers on contemplating a purchase,” he said in the judgment.
Justice Stewart said both brands had “distinctive” names and both the brands are “rendered in different typeface” on the cans.
Brick Lane’s lawsuit named Torquay and Better Beer as respondents along with Mighty Craft, a listed company that owns a majority stake in Torquay. Following the proceedings, Brick Lane is expected to pay all three respondents’ legal costs.
Steele and Ford have since issued a statement, saying it was a “win for common sense”.
“Justice Stewart has confirmed our position today that this was an embarrassing case to bring before the Federal Court of Australia,” the duo said.
“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.”
You can buy Better Beer here.
