Federal case against Better Beer dismissed

ONE of the owners of Torquay-based brewer Better Beer said he always knew his products “were on the right side of the law” following a judgement in Better Beer’s favour at the Federal Court of Australia yesterday (Wednesday, February 8).

Last year, Brick Lane sued Better Beer – which is jointly owned by Torquay’s Nick Cogger and social media influencers The Inspired Unemployed – for misleading or deceptive conduct, alleging Better Beer’s products could be mistaken for Brick Lane’s Sidewinder brand.

Brick Lane argued beer lovers could be misled that the off-white colour, retro design with stripes and 355ml size of both Sidewinder low-strength beer and Better Beer’s full-strength lager were the same product or made by the same company.

In his judgement, Justice Angus Stewart dismissed the case, saying that “the applicant’s Sidewinder brand was announced publicly about five days before the respondents’ Better Beer brand, and although the get-up used for each has many similar features, each was developed independently of the other”.

“The first Sidewinder product was available for sale to consumers nearly three months before the first Better Beer product. The products essentially built their reputations in the market side by side.”

Mr Cogger said the legal issues started in the middle of 2021, when Brick Lane’s lawyers contacted Better Beer “claiming ownership of the look of the Sidewinder product and the style of the category”.

“Considering we both launched at the same time, it was ridiculous.

“So we went through the process, we got a lot of advice – internal lawyers, external lawyers, King’s Counsel – and we thought ‘We’re on the right side of the law and this probably isn’t a case that’ll go much further’, but it did, and it got to the Federal Court.

“Going through a court process of this scale is extremely expensive, and I suppose that’s the tactic of some companies when they come after smaller companies, which we were at the time.

“To run a case could be somewhere around half a million dollars, and most people will just disappear or just accept that they can’t run the process through the courts.

“Over the summer period, we sort of started turning into quite a large business, so we had to defend ourselves, and it was an unequivocal decision by Justice Stewart.

“We didn’t feel there was any risk at trial, we sort of knew we were on the right side of things, but to get to the other side of things was good.”

Justice Stewart noted that “the hypothetical reasonable consumer of beer must be taken to take 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. 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.”

Mr Cogger agreed.

“To say someone would walk in and accidentally purchase a product that’s quite distinctively different-looking and go as far as causing harm at this level… it was ridiculous from the start, hence why we went though the process, we didn’t change our cans and we didn’t back down from the threats,” he said.