Brick Lane Brewing, a Victorian beer company, recently lost a court case against the brand Better Beer, which is owned by Torquay Beverage Co Ltd, Mighty Craft Ltd, and Better Beer Co. Brick Lane claimed that Better Beer engaged in misleading or deceptive conduct, or false representations, in relation to its ale and ginger beer products as they held similar features and packaging.
As Brick Lane Brewing did not have registered trade marks over its distinctive brand elements, it was left to prove the extent of its reputation and distribution in relation to its claim.
Brick Lane launched its Sidewinder brand approximately five days before the Better Beer brand was unveiled. Sidewinder was available for sale roughly three months before Better Beer. Both products had similar packaging features, including an off-white 355 ml can, cardboard cluster and case, and a curving flared striped design in blue and shades of yellow and orange.
Brick Lane argued that the packaging and promotion of Better Beer amounted to misleading or deceptive conduct, or false representations, as they considered consumers could easily mistake Better Beer products for Sidewinder products.
The Court’s Decision
The Court determined whether a person may be led into error based on the conduct of the defendant. The Court also considered:
- The strength of Brick Lane’s reputation and the extent of distribution of its products;
- The strength of Better Beer’s reputation;
- The nature and extent of the differences between the products, including whether the products were directly competing;
- The circumstances in which the products were offered to the public; and
- Whether Better Beer had copied or intentionally adopted prominent features and characteristics of Brick Lane’s product.
The Court concluded that the hypothetical reasonable consumer of beer would not have had any particular familiarity with Brick Lane’s Sidewinder get-up due to the short time it had been released prior to Better Beer’s release. Even if they did have familiarity with the product, the Court concluded that they would not have been likely to be misled by the similarity of the respondents’ Better Beer get-up into thinking that the products were in some way associated.
What Does This Mean for You?
This battle demonstrates that trade mark registration is an essential tool for companies to distinguish their products from competitors. In this case, a registered trade mark would have given Brick Lane a stronger platform from which to uphold its rights and claim Better Beer’s infringement of its registered brand elements.