A man who owns a popular brand of beer alongside a pair of comedians who rose to fame creating social media sketches has denied basing his design on another brand in court.
The Federal Court of Australia will have to decide whether The Inspired Unemployed’s top beer confuses the market alongside Brick Lane’s Sidewinder.
Larrikins Jack Steele and Matt Ford have collaborated with Torquay Beverage Company and Mighty Craft to launch the highly successful low carb beer in October 2021.
The carb-free craft beer is the brainchild of Nick Cogger of Torquay Beverage Co, but each of the comedians owns a 20% stake in the company.
Months after Better Beer’s release, Brick Lane sued in the Federal Court of Australia, claiming the influencers’ beer “made false, misleading or deceptive statements” when it launched.
Brick Lane Brewing, whose stakeholders include Billy Slater, Dan Carter, Eddie McGuire and Mick Molloy, launched the lawsuit in December.
The company says consumers would be confused that their product, Sidewinder Hazy Pale, and Better Beer were somehow related, and is seeking corrective ads and damages.
The trial entered its second day on Tuesday and Mr Cogger, chief executive of Torquay Beverage Company and Better Beer, took the witness box.
He told the court that Better Beer began the design process in January 2021, months before Sidewinder hit the market.
Brick Lane lawyer Justine Beaumont showed Mr Cogger some of his tendered evidence in which he listed Brick Lane as a “key competitor” in the market.
“You specifically saw Brick Lane as a competitor,” Ms Beaumont said.
Mr Cogger said he does not see it as a competitive business, but rather as an “end product”.
Ms. Beaumont continued to pressure Mr. Cogger.
“When you were developing Better Beer, you had a very close eye on Brick Lane,” she said.
He replied: “We wanted to play against incumbent mainstream products such as Furphy and James Squire. We said there were probably only three players in this category and Brick Lane was one of them.
Ms Beaumont took Mr Cogger to another page of evidence which showed a briefing Mr Cogger had sent to a designer, which again listed Brick Lane in the “competitive series”.
“We’re pretty much saying the whole market is our competitor,” Cogger said.
“I wish we had more competitors to be honest.”
The court was told Better Beer’s Instagram account was unavailable when the brand’s marketing plan began.
But because the comedy duo were “so well known” on Instagram, they managed to reach out to someone “up” on the platform.
“My business partners are pretty well known and the person that’s being referred to, he’s high on Instagram and that’s basically how we got the Better Beer handle that day,” Mr Cogger said.
Brick Lane chief executive Paul Bowker sat in the back of the court as Mr Cogger gave evidence.
Earlier in the trial, Ms Beaumont told the court that her client’s brand relied heavily on the “distinctive curved stripes” on Sidewinder cans and packaging.
“Sidewinder Hazy Pale has the distinctive curved stripes, blue, organ and yellow and off-white background,” Ms. Beaumont said.
Ms Beaumont told the court that Sidewinder produced sales and marketing in the lead up to Better Beer’s launch in July 2021.
At that time, she said consumers “recognized the outfit” as being associated with Sidewinder.
“The emphasis on the stripes of the can in the checks and the color palette,” Ms. Beaumont said.
She told the court that a press release was also issued by the brand on July 21 and that more than 300 bus advertisements were put up showing Sidewinder beer.
Ed Heerey QC, acting on behalf of Better Beer and its owners, told the court that a statement issued to the Australian Stock Exchange on July 26, 2021 announced that the product would be commercialized in October of the same year.
On the same day as the ASX announcement, Mr Heerey told the court that five articles had been published in various news outlets as well as on influencers’ social media pages.
While it’s not suggested that Better Beer copied Sidewinder, Mr Heerey said it was nonsense that the two products would confuse consumers.
“If there’s anything you’ll remember, it’s the name. If you ever go back for him, you’ll need the name,’ Mr Heerey told the court.
The trial continues before Judge Angus Stewart.
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