This case concerned a claim by Brick Lane Brewing that Better Beer’s packaging (shown on the left below) and promotion induced consumers to mistake the product for Brick Lane Brewing’s “Sidewinder” beer (shown on the right below).
Sidewinder did not allege any deliberate copying by Better Beer. Instead its case (in the legal sense) was that consumers were being misled by the packaging of Better Beer into believing, among other things, that the Better Beer product was actually Sidewinder’s product and that the Better Beer product had the sponsorship, approval, affiliation or characteristics of Brick Lane Brewing.
As can be seen from the images above, both products have:
• an off-white 355 ml can; and
• a similar (though not identical) curving striped design in blue and shades of orange and yellow.
Ultimately, the distinctive names used for the different products, and the differences in their get-ups, meant that Sidewinder’s claim failed. In particular the judge, Justice Stewart, held that:
• At the time when both products were released, there was no appreciable knowledge by consumers of Sidewinder’s product (it being launched only days before Better Beer’s product) and as a result it was unlikely the hypothetical member of the class of consumers purchasing beer would have any familiarity with the Sidewinder get-up;
• Whilst there was evidence of some actual confusion in the market, there was no evidence anyone had been misled into purchasing the wrong product; and
• Both products have distinctive and different brand names. In making this finding, Stewart J referred to the recent case Natural Raw C Pty Ltd v Maicap Pty Ltd  FCA 51 (in which Cowell Clarke acted for the successful respondent), and stated that different product names in the context of otherwise very similar get-ups was compelling in distinguishing the products.
Cowell Clarke has significant experience in advising clients with respect to product packaging, advertising, food standards, labelling and advertising requirements and in claims for misleading and deceptive conduct. If you have any concerns regarding the packaging of a competitor, or find yourself in a position where you are defending the packaging of your product, Cowell Clarke is able to assist.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.