Document ID: chunk:federal_register_of_legislation:F2025C00049:reg:32:p1
Version: federal_register_of_legislation:F2025C00049
Segment Type: reg
Provision Reference: reg 32 (pt 1/2)
Character Range: 46741–49276

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