32Use of trade marks in description of wine

32 Use of trade marks in description of wine

Circumstances in which exemption applies (1) Subsection (4) applies if: (a) the Registrar of Trade Marks decides, under subsection 40RC(2) of the Act, that an objection to a proposed GI is made out, but the GI is subsequently registered in accordance with subsection 40ZD(2) of the Act; or (b) the Registrar of Trade Marks decides, under section 71 of this instrument, that an objection to a proposed item is made out, but the item is subsequently registered in accordance with subsection 40ZD(2) of the Act; or (c) a trade mark is registered or is the subject of a pending application under the Trade Marks Act 1995 and: (i) after the registration of, or application for, the trade mark, a GI or translation is proposed and registered; and (ii) the GI or translation is identical to, or is likely to cause confusion with, the trade mark; or (d) a trade mark listed in subsection (3) is identical to: (i) a registered GI that indicates a foreign country or a region or locality in a foreign country; or (ii) a registered translation of such a GI; or (e) a trade mark listed in subsection (3) is likely to cause confusion with: (i) a registered GI that indicates a foreign country or a region or locality in a foreign country; or (ii) a registered translation of such a GI. (2) If: (a) paragraph (1)(a) or (b) applies; and (b) the objection was on the ground that the proposed GI or proposed item is used in Australia: (i) as the common name of a type or style of wine; or (ii) as the name of a variety of grapes; then a reference in subsection (4) to a trade mark is taken to be a reference to that name. (3) For the purposes of paragraphs (1)(d) and (e), the trade marks are the following: (a) Ilya; (b) Karloff; (c) Lienert of Mecklenburg; (d) Lindauer; (e) Montana; (f) Salena Estate; (g) The Bissy. Exemption (4) For the purposes of subsection 40J(5) of the Act, wine is exempted from the offence provisions if: (a) the description and presentation of the wine is false or misleading, or does not comply with registered conditions of use, only because: (i) the trade mark is used in the description and presentation; and (ii) the trade mark is the same as or resembles the registered GI or registered translation; and (iii) the wine did not originate in the country, region or locality indicated by the registered GI or registered translation; and (b) the origin of the wine is shown in the description and presentation of the wine in a way that is not likely to mislead.

Note: The offence provisions is defined in subsection 40J(1) of the Act.