If you export to Australia and the Wine Equalisation Tax (WET) rebate is important to you or your business, you should be investing in an Australian trade mark registration now. This article provides a quick summary of why NZ wine exporters should consider trade mark protection in Australia.
Changes have been made to the WET legislation in Australia that come into effect on 1 July 2018. These changes include certain trade mark requirements that vintners must abide by in order to take advantage of the WET Rebate. The changes are particularly important for wine labels established after 1 July 2015.
Expanding a little on the above, in order to qualify for the rebate the amendments impose requirements on the labelling and packaging of wines, including the need for wine containers to be branded with a qualifying trade mark. A ‘qualifying’ trade mark is an Australian trade mark registration or pending application or a New Zealand trade mark registration or pending application that is ‘equivalent’ to a qualifying Australian registration or application. Common law or unregistered trade marks in use may also be qualifying trade marks in certain circumstances.
If you can rely on a New Zealand trade mark, why are we recommending you invest in an Australian registration? Without even considering the changes to the WET rebate regime, if you are exporting to Australia a registered trade mark gives you the strongest protection available for your brands. In relation to the rebate, the meaning of ‘equivalent’ to an Australian trade mark and how this may be interpreted is as yet unknown. In addition, if you wish to rely on an unregistered trade mark you will need to provide evidence of continuous use of that trade mark in Australia from 1 July 2015 up to the assessible transaction on which you are claiming the rebate. If you have not kept examples of that evidence of use or your use in Australia is a little patchy in places, you may not qualify for the rebate.
Given the uncertainty and the clear benefits of owning an Australian registered trade mark regardless of the WET rebate, you should be carefully considering your options. Our team can assist you with a filing program that works for you and your business.