Comité Interprofessionel du Vin de Champagne v Powell  FCA 1110 (20 October 2015)
Geographical indications – “Champagne Jayne” – promotion on Internet and social media – misleading and deceptive conduct
The respondent (Powell) provides “wine education services”, including wine events and consulting services, under the name “Champagne Jayne”. The applicant (CIVC) is a French statutory corporation established to represent the interests of those involved in the manufacture and sale of wines from the Champagne region. It will be recalled that in Australia, only wines that originate from that region can be called “Champagne”, with wines of a similar style but produced elsewhere referred to as “sparkling wine” (or something else). “Champagne” is a registered geographical indication under theAustralian Grape and Wine Authority Act 2013 (Cth) (AGWA Act), and its use by Australian winemakers in respect of locally produced wine has been phased out in recent years pursuant to international treaties.
Powell is a somewhat effervescent personality, being the author a successful book about Champagne wines and the holder of various awards relating to the same, and enjoying a significant online presence as “Champagne Jayne” through her website, YouTube channel and on social media like Facebook, Twitter and Instagram. She also engages in real-life conduct as “Champagne Jayne”, appearing at and conducting tastings, corporate functions and other wine related events. Powell’s business and “Champagne Jayne” persona are consistently promoted by reference to the name “Champagne” and various indicia of “Frenchness” that (in an informal sense) evoke the positive reputation of Champagne wines. Although 90% of Powell’s business is focused on such wines, in some cases she also promotes non-Champagne wines, such as “Arras” sparkling wines from Tasmania.
CIVC did not allege trade mark infringement or passing off, nor seek to prevent Powell from calling herself “Champagne Jayne” per se. Rather, CIVC alleged that some of Powell’s conduct had bubbled over into the forbidden territory of misleading or deceiving consumers as to the relationship between Powell and the official Champagne sector in some cases, and misleading or deceiving consumers into believing that certain non-Champagne wines referred to by Powell were, or were likely to be, authentic Champagne wines.
Justice Beach held that the relevant class of consumers were prospective purchasers of Champagne and other sparkling wines and, that a not insignificant number of such consumers would have been exposed to Powell’s conduct. Powell’s conduct (and her online content in particular) could be assumed to have been directed toward, and read by, members of that class. Further, it was not relevant that Powell was not herself part of the wine supply chain; her conduct nevertheless was directed at relevant consumers.
Justice Beach held that Powell’s real-life activities in referring to non-Champagne wines at various social functions did not contravene section 18 of the Australian Consumer Law, as any erroneous impression that might arise at the start of the relevant events will have fizzed out by the end. His Honour also rejected CIVC’s argument that, in combination, the use of the name “Champagne Jayne” and Powell’s conduct misrepresented an affiliation or sponsorship with the Champagne sector, save in respect of instances in which Powell referred to herself as an “ambassador” for Champagne. That term falsely implied a level of official authorisation from the Champagne sector, and Powell holding various “titles” or awards by unofficial Champagne bodies was insufficient to justify the label “ambassador”. However, as Powell had already put a cork in it so far as referring to herself as an “ambassador” was concerned, his Honour was disposed to accept an undertaking rather than grant relief for that part of CIVC’s case.
The rest of Powell’s online activity, however, was held to contravene section 18 of the ACL. Most readers of content posted by “Champagne Jayne” would expect it to relate to Champagne wines. In a number of cases Powell reviewed non-Champagne wines without clarifying that they were not Champagne wines (or, worse, referring to those wines as “champagne” in the body of the text). In other cases, images were posted of bottles of non-Champagne wines juxtaposed with Champagne wines, again without clarification as to origin.
CIVC’s additional claims that Powell had committed offences under the AGWA Act failed for a number of pleading and other threshold reasons, but also because it was not established that Powell was “selling” wine in the requisite sense.