A pair of comedians who shot to fame by creating skits on social media while unemployed will not have to change the design of their beer cans after they were taken to court and accused of copying another’s design.
Larrikins Jack Steele and Matt Ford, better known as The Inspired Unemployed, collaborated with Torquay Beverage Company and Mighty Craft to launch Better Beer in October 2021.
The zero carb craft beer was the brainchild of Torquay Beverage Co’s Nick Cogger, but each of the comedians hold a 20 per cent stake in the company.
Months after Better Beer’s release, another beer company lodged proceedings in the Federal Court of Australia, claiming the influencers’ beer “made false, misleading or deceptive representations” when it launched.
Brick Lane Brewing, whose stakeholders include Billy Slater, Dan Carter, Eddie McGuire and Mick Molloy, launched the legal action in December 2021.
The company claimed consumers would be confused their product, Sidewinder Hazy Pale, and Better Beer were related in some way and is seeking corrective advertising and damages.
Brick Lane alleged similarities in the cans’ design could have led customers to be confused about whether the products were related.
In a judgment delivered in the Federal Court on Wednesday, Justice Angus Stewart dismissed the lawsuit.
The reasons for his decision are expected to be published later on Wednesday, after parties were given a deadline of 2pm to raise any issues.
“Failing any such application, the reasons for judgment will be published to the court’s website,” Justice Stewart said.
“Until then, the parties must not disclose the reasons for judgment beyond themselves and their professional advisers.”
He told the parties he ensured there was nothing “commercially problematic” in the judgment.
During the three-day trial, Brick Lane’s barrister Justine Beaumont told the court the brand relied heavily on the “distinctive curve stripes” of the Sidewinder beer cans and packaging.
“Sidewinder Hazy Pale has the distinctive curve stripes, the blue, organ and yellow, and the off-white background,” Ms Beaumont said.
“A large amount of the background is left void in the off-white colour and the can is 355ml. We don’t say it’s unique, but it’s not the common size of a beer can.
“Then the dark colouring for the product name, font on the can and carton, which is black.”
Ms Beaumont told the court that Sidewinder had produced sales and marketing in the period before Better Beer was launched.
By this time, she said consumers “recognised the get-up” as being associated with Sidewinder.
The court was told Sidewinder launched its Instagram profile in July 2021 when the can and its design appeared on the page.
“The emphasis on the stripes of the can in the tiles and the colour scheme,” Ms Beaumont said.
She told the court a media release was also issued by the brand on July 21, and more than 300 bus adverts had been erected, showing the Sidewinder beer.
Ed Heerey QC, acting on behalf of Better Beer and its owners, told the court a release on the Australian Stock Exchange on July 26, 2021, announced that the product would be going to stores in October that year.
He explained to the court that the Inspired Unemployed were “two unemployed” tradies who began making videos during Covid-19.
“The rest is history,” Mr Heerey said.
On the same day as the ASX announcement, Mr Heerey told the court that five articles were posted in various news outlets as well as on the social media pages of the influencers.
While it is not being suggested Better Beer copied Sidewinder, Mr Heerey said it was absurd the two products would confuse consumers.
“If there’s anything you’re going to remember it’s the name. If you’re ever going to go back looking for it, you’ll need the name,” Mr Heerey told the court.
“There’s plenty of products with white backgrounds. Consumers have to look a bit harder than just colour schemes.
“The brand names clearly tell you which one is which. We would say there is no chance you could be misled.”
Mr Heerey told the court that beer consumers were confronted with a “large number” of brands regularly.
“It’s a visual cacophony of brands,” he said.
The judgment is expected to be made public on Wednesday.
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