32B.1. Introduction

1.1 Overview

Examination of trade mark applications filed in respect of wines and grape products such as brandy, grappa and fortified wines involves consideration of additional requirements arising from the Wine Australia Act 2013.

The Wine Australia Act protects certain terms used in relation to these goods.  The examiner must consider whether a trade mark is or contains a term protected under the Wine Australia Act and whether a contrary to law ground for rejection applies under section 42 of the Trade Marks Act 1995.

This Part of the Manual will also discuss considerations in relation to sections 41, 43 and 44 of the Trade Marks Act 1995.

1.2 The Wine Australia Act 2013

The Wine Australia Act (formerly the Wine Australia Corporation Act 1980 and Australian Grape and Wine Authority Act 2013) establishes the Australian Grape and Wine Authority (trading as Wine Australia and formerly known as the Wine Australia Corporation) as a peak body to promote and regulate the Australian wine industry in both domestic and export markets.  Part VIB of the Wine Australia Act gives effect to The Agreement Between Australia and the European Community on Trade in Wine (the ‘Wine Agreement’).  Under the Wine Agreement Australia is obliged to protect certain geographic terms and other expressions used in connection with wine made in any of the member countries.

1.3 The Register of Protected Geographical Indications and Other Terms

The Register of Protected Geographical Indications and Other Terms (the Wine Register) lists the four categories of terms that Australia and the European Union will protect. These are listed in the following 5 searches in the Wine Australia website:

1. Australian Geographical Indications (‘Australian GIs’)
2. European Geographical Indications (‘European GIs’)
3. Traditional Expressions (‘TEs’)
4. Quality Wine Terms (‘QWTs’)
5. Additional Terms (‘ATs’)

Entry of Australian and foreign terms on the Wine Register along with conditions pertaining to their use is determined by the Geographic Indications Committee (GIC) or by international treaty.

An example of an entry in Part 3 of the Wine Register is the Australian Quality Wine Term “tawny”.  The Wine Register also records the conditions of its use which specify that when “tawny” is used on fortified wine, it must conform to the characteristics attributed to “tawny” fortified wines as defined by the Wine Register as follows:

‘Tawny describes a style of Australian fortified wine that receives varying years of ageing prior to bottling. At bottling the wine has a red-gold or "tawny" hue. The wines should reflect the characteristics of careful aging showing "developed" rather than "fresh" fruit characters. However, many show the fresh well developed "fruit" characteristics of younger wine. The wine is usually blended from more than one vintage, may be matured in oak containers and reaches an optimal age before sale. Fortification must be from grape spirit.’

Once a GI, TE, QWT or AT is entered on the Wine Register, any false or misleading description or presentation of wine, including use which contravenes the registered conditions, will constitute an offence under the Wine Australia Act (sections 40C and 40E). Therefore, use of that term as a trade mark would be contrary to law.