The Applicant brought claims of misleading or deceptive conduct and misleading or false representations against the Respondents. The matter concerned Torquay’s sale and promotion of their new beer, branded as “Better Beer”, where it was noted to have similar product packaging and trade dress with Brick Lane’s product, branded as “Sidewinder”. Brick Lane’s Sidewinder brand was publicly announced five days before the Torquay announced the Better Beer brand. The first Sidewinder product was available for sale approximately three months before Torquay’s Better Beer product.
Brick Lane was unsuccessful in their claim that the Better Beer brand had contravened sections 18 and 29 of the Australian Consumer Law (ACL).2 It was highlighted that neither Torquay nor Brick Lane had applied for Trade Mark registration in respect of the product trade dress, and as such, the issue of ‘reputation’ was called into question. Sections 18 and 293 emphasise the requirement to prove that there is a likelihood that consumers will be deceived or mislead while ‘having regard to the state and knowledge of consumers’ with respect to the product.4
As a result, Brick Lane were required to identify certain features of their product that was already known to consumers which distinguished their brand from Torquay5 although, Justice Stuart concluded, on this basis, that there was no appreciable knowledge by consumers of the Sidewinder product get up. Therefore, Torquay’s Better Beer product was not capable of confusing or misleading consumers into believing the product was that of Sidewinder, and hence, there was no contravention of sections 18 and 19 of the ACL.6
The judgement has highlighted once again that registering Trade Marks to protect a business’ product or its trade dress is important since establishing a sufficient reputation of a brand-new product to satisfy the requirements of the ACL is difficult.
2 Competition and Consumer Act 2010 (Cth) sch 2, s 18 & s 29 (‘Australian Consumer Law’).
4 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd  159 FCR 397, 99.
5 Mars Australia Pty Ltd v Sweet Rewards Pty Ltd  81 IPR 364, 22.