40DBCircumstances in which description and presentation is not false—inclusion of registered traditional expressions

40DB Circumstances in which description and presentation is not false—inclusion of registered traditional expressions

Inclusion of registered quality wine term (1) If: (a) the description and presentation of wine includes a registered quality wine term; and (b) the wine originated in Australia; and (c) the description and presentation indicates that the wine originated in Australia or in a region or locality in Australia; and (d) the registered quality wine term is also a registered traditional expression; and (e) the wine is in a category of wine in relation to which the expression is registered; then the description and presentation is not false merely because it includes the registered quality wine term. Wine originating in non‑agreement country (2) The description and presentation of wine that originates in a foreign country that is not an agreement country is not false merely because it includes a term that is a registered traditional expression if: (a) the term is not used in such a way as to be likely to mislead as to the country, region or locality in which the wine originated; and (b) the description and presentation indicates the country, region or locality in which the wine originated; and (c) the inclusion of the term in the description and presentation does not constitute unfair competition within the meaning of Article 10bis of the Paris Convention for the Protection of Industrial Property of 20 March 1883 as amended.

Note: The text of the Convention is set out in Australian Treaty Series 1972 No. 12 ([1972] ATS 12). In 2009, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Inclusion of trade mark (3) If: (a) the description and presentation of wine includes a trade mark; and (b) the trade mark contains or consists of a registered traditional expression; and (c) before the protection date for the traditional expression: (i) the trade mark had been entered in good faith in the Register of Trade Marks; or (ii) the owner of the trade mark had acquired rights in the trade mark through use in good faith; then the description and presentation is not false merely because it includes that trade mark. Inclusion of business name (4) If: (a) the description and presentation of wine includes a business name; and (b) the business name contains or consists of a registered traditional expression; and (c) before the protection date for the traditional expression, the business name was registered in good faith under the law of a State or Territory or on the Business Names Register established and maintained under section 22 of the Business Names Registration Act 2011; then the description and presentation is not false merely because it includes that business name. (5) Subsection (4) does not limit subsection 40DA(3). Definition of protection date (6) In this Act, the protection date for a registered traditional expression is: (a) if the traditional expression is registered in relation to an agreement country under paragraph 40ZD(2A)(a): (i) unless subparagraph (ii) applies—the date on which the prescribed wine‑trading agreement to which that country is a party was signed; or (ii) if that agreement is modified after that date to include the traditional expression and paragraph (b) does not apply—the date on which the agreement is so modified; or (b) if the traditional expression is registered in relation to a foreign country (whether or not an agreement country) under paragraph 40ZD(2A)(b)—the date on which the traditional expression is registered.