The sparkling wine enthusiast known as “Champagne Jayne” has been largely exonerated by an Australian Federal Court judge, after being accused by representatives of the French Champagne industry of misleading consumers. The decision is interesting, and illustrates some of the challenges faced by companies in protecting their brands in the online environment.
“Champagne” as a appellation of origin
Prior to 1994, the term “Champagne” was widely used by Australian wine makers and the general public as a generic description for sparkling wine. However following a number of bilateral treaties between Australia and Europe, generic use of the term has gradually been phased out, and since 2011 the term can only be used for wine that originates from the Champagne region of France and which has been made in accordance with strict controls imposed under French law.
Champagne Jayne, the CIVC and the dispute
Rachel Jayne Powell is better known as “Champagne Jayne”. For over 10 years she has operated a website and various social media accounts through which she provides news, reviews and other content in relation to sparkling wines, and in particular Champagne wines. In addition to her online presence, she has charged fees for various services such as event management and public speaking. Ms Powell conducted all of these activities under her “Champagne Jayne” persona.
CIVC is a French company that represents the interests of Champagne producers. CIVC sued Ms Powell in relation to her use of the name “Champagne Jayne”. The case was heard over 5 days in December 2014 and April 2015, and a decision was handed down on 20 October 2015.
CIVC originally sought wide-ranging orders against Ms Powell, including orders cancelling her registered business name “Champagne Jayne”, her domain name www.champagnejayne.com.au, her Facebook account and her twitter account “Jayne Powell @champagnejayne”, and an order that Ms Powell withdraw her trade mark application for “Champagne Jayne”. CIVC also objected to Ms Powell’s promotion of Australian wines via social media and other activities under her “Champagne Jayne” persona.
CIVC’s case was brought primarily under the Australian Consumer Law, which prohibits a person from engaging in conduct in the course of trade that is likely to mislead or deceive. CIVC argued that Ms Powell’s use of “Champagne Jayne” was likely to mislead the public into assuming that she had some formal affiliation with the Champagne sector that she did not have, and that her use of “Champagne Jayne” to promote Australian sparkling wines was likely to mislead the public into assuming that they were in fact Champagne wines.
CIVC’s case was largely unsuccessful, although the Court found that some of Ms Powell’s social media activities breached the Australian Consumer Law because she sometimes referred to sparkling wines without making it clear that they were not Champagne wines.
The Court accepted CIVC’s contention that Ms Powell had intentionally adopted her “Champagne Jayne” persona to trade off the favourable reputation and goodwill of the Champagne name. However, it did not follow that the “Champagne Jayne” persona was likely to mislead or deceive Australian consumers. The Court considered that consumers seeing Ms Powell’s social media activities would expect to read content relating to Champagne wines, and that of itself is not misleading or deceptive.
However, some of Ms Powell’s online content involved references to sparkling wines in a manner that did not clearly identify that they are not Champagne wines. The Court considered those references likely to mislead some Australian consumers, and so breached the Australian Consumer Law. On occasions, Ms Powell used qualifying language, such as “Australian” or “English”, to refer to the non-Champagne wines. However the Court found that the qualifying language used was not sufficient to overcome the overall impression created by Ms Powell’s Champagne Jayne persona.
The Court also found that Ms Powell’s description of herself as “Global Champagne Ambassador” was misleading, because it conveyed the impression that she had some official status or affiliation with the Champagne sector.
Ultimately, and not surprisingly, CIVC succeeded in only limited aspects of its broader case. Champagne Jayne lives on, although no doubt she will take more care in the future when referring to Australian or English sparkling wines – which is a win of sorts for the Champagne sector. But it is unlikely that many celebratory corks were popped at CIVC’s head office when the decision was handed down.