By Vincci Chan and Joanne Shepard -
Key decisions
- Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66
- McMillan Investment Holdings Pty Ltd v Morgan [2023] FCAFC
CONSUMER LAW
Misleading deceptive conduct – whether similar get-up of beer products likely to be misleading or deceptive or has tendency to lead into error, or represents an association between them –identification of the relevant class of persons and extent to which applicant must establish a reputation
Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66 (Stewart J)
In the recent decision of Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd [2023] FCA 66 (‘Brick Lane Brewing’), the applicant (‘Brick Lane’) manufactured and sold beer branded as ‘Sidewinder’ which included low alcohol beer products. The respondents were organisations that had roles in making and selling beer and ginger beer, branded as ‘Better Beer’, including a no carbohydrate full (alcohol) strength lager and a low sugar alcoholic ginger beer. In this action, Brick Lane claimed the respondents engaged in misleading or deceptive conduct and misleading or false representations in relation to the promotion and sale of ‘Better Beer’, relying on section 18 of the Australian Consumer Law (‘ACL’). The relief sought included declarations, injunctions, delivery up, corrective advertising and damages.
Brick Lane contended the packaging and promotion of Better Beer lager and ginger beer induced, or was capable of inducing, consumers into error by mistaking those products for Sidewinder products or mistaking those products as being low or no alcohol beverages (see Schedule for images of the relevant packaging). Therefore, the respondents engaged in conduct that was misleading or deceptive or likely to mislead or deceive within ACL s 18(1) (at [22]-[23]).
