Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] FCA 66
• Date: 08 February 2023
• Court: Federal Court

Federal Court of Australia

Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66

File number:	NSD 1342 of 2021
Judgment of:	STEWART J
Date of judgment:	8 February 2023
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – whether similar get-up of beer products is likely to be misleading or deceptive or has a tendency to lead into error, or represents an association between them – ss 18 and 29 of the Australian Consumer Law – identification of the relevant class of persons – the extent to which the applicant must establish a reputation in its get-up at the relevant date – whether the relevant date is when the respondents first commenced using their similar get-up or whether it is only when their goods first became available for sale – consideration of similarities and differences, in particular the names of the products – the extent to which “thirsty folk want beer, not explanations”
Legislation:	Competition and Consumer Act 2010 (Cth) s 75B, Sch 1 ss 18, 29 Evidence Act 1995 (Cth) s 76(1)
Cases cited:	ACCC v Employsure Pty Ltd [2021] FCAFC 142; 392 ALR 205 ACCC v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 ACCC v TPG Internet Pty Ltd [2020] FCAFC 130; 278 FCR 450 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCA 70; 159 FCR 397 Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 2 NSWLR 851 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 30 Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 Hansen Beverage Co v Bickfords [2008] FCA 406; 75 IPR 505 Hashtag Burgers Pty Ltd v In-n-Out Burgers Inc [2020] FCAFC 235; 385 ALR 514 Homart Pharmaceuticals Pty Ltd Careline Australia Pty Ltd [2018] FCAFC 105; 264 FCR 422 Homart Pharmaceuticals Pty Ltd v Caroline Australia Pty Ltd [2017] FCA 403; 349 ALR 598 In-N-Out Burgers Inc v Hashtag Burgers Pty Ltd [2020] FCA 193; 377 ALR 116 Interlego AG v Croner Trading Pty Ltd [1992] FCA 992; 39 FCR 348 Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCA 606; 81 IPR 354 Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174; 84 IPR 12 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd [1980] FCA 188; 33 ALR 394 Montgomery v Thompson [1891] AC 217 Natural Raw C Pty Ltd v Maicap Pty Ltd [2023] FCA 51 Norman Kark Publications Ltd v Odhams Press Ltd [1962] 1 WLR 380 Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380; 275 ALR 526 Parkdale Custom Built Furniture v Puxu [1982] HCA 44; 149 CLR 191 Registrar of Trade Marks v Woolworths [1999] FCA 1020; 93 FCR 365 S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1998] FCA 1463; 88 FCR 354 State Government Insurance Corporation v Government Insurance Office of New South Wales [1991] FCA 198; 28 FCR 511 Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; 42 ALR 177 Trivago NV v ACCC [2020] FCAFC 185; 384 ALR 496 Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234 Verrocchi v Direct Chemist Outlet Pty Ltd [2016] FCAFC 104; 247 FCR 570 Woodtree Pty Ltd v Zheng [2007] FCA 1922; 164 FCR 369
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	116
Date of hearing:	27-29 July 2022
Counsel for the Applicant:	J M Beaumont SC, J E McKenzie and M McGrath
Solicitor for the Applicant:	Marque Lawyers
Counsel for the Respondents:	E J C Heerey KC and M B Fleming
Solicitors for the Respondents:	By George Legal

ORDERS

		NSD 1342 of 2021
BETWEEN:	BRICK LANE BREWING CO PTY LTD Applicant
AND:	TORQUAY BEVERAGE COMPANY PTY LTD First Respondent ; BETTER BEER COMPANY PTY LTD Second Respondent ; MIGHTY CRAFT LTD Third Respondent

order made by:	STEWART J
DATE OF ORDER:	8 FEBRUARY 2023

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

2. The applicant pay the respondents’ costs of the proceeding.

3. There be liberty to apply for a variation of order 2 within 14 days of these orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction	[1]
Brick Lane and Sidewinder	[3]
The respondents and Better Beer	[11]
The pleaded case	[22]
The relevant principles	[28]
The statutory provisions and general principles	[28]
The role of reputation	[38]
The relevant date	[42]
The facts in detail	[50]
Development, promotion, sale and reputation of the Sidewinder range	[50]
Development, promotion and sale of the Better Beer range	[65]
Summary of material dates	[75]
The circumstances in which the products are offered to the public	[76]
The parties’ knowledge of each other’s plans	[78]
Evidence of confusion	[83]
Consideration	[91]
The relevant class	[91]
Misleading or deceptive, or false?	[97]
Conclusion	[115]
Schedule	[]

STEWART J:

Introduction

1. The applicant makes a claim of misleading or deceptive conduct and misleading or false representations against the respondents based on their promotion and sale of beer and ginger beer, branded as “Better Beer”, in similar get-up to that used by the applicant for the promotion and sale of its beer, branded as “Sidewinder”. The claim relies on ss 18 and 29(1)(g) and (h) of the Australian Consumer Law (ACL). There is no passing-off claim. The applicant seeks declarations, injunctions, delivery up, corrective advertising, damages and other relief.

2. As will be seen, 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. For the reasons that follow, I have concluded that despite the applicant having got its get-up and product into the market first, its claim fails.

Brick Lane and Sidewinder

3. The applicant is Brick Lane Brewing Co Pty Ltd. It is a brewing company that has manufactured, distributed, advertised and sold beer since 2017. It has a production...