FEDERAL COURT OF AUSTRALIA

Comité Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110

THE COURT ORDERS THAT:

1.    The applicant within 14 days of the date hereof file and serve proposed minutes of orders to give effect to these reasons including on costs and for the further conduct of the matter, together with written submissions (limited to five pages).

2.    The respondent within 14 days of the receipt of the applicant’s proposed minutes of orders and submissions file and serve her proposed minutes of orders, together with written submissions (limited to five pages).

3.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Comité Interprofessionnel du Vin de Champagne (CIVC) represents the interests of growers, producers, negociants and merchants of Champagne wines.

2    Rachel Jayne Powell provides wine education services, including event management and consulting services focused on wine. She promotes herself and wines under her title and alter ego Champagne Jayne.

3    The CIVC alleges that by the way Ms Powell has promoted herself and used the name Champagne, she has engaged in misleading or deceptive conduct and made false representations in contravention of ss 18 and 29 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL). It further alleges that by the way she has used the name Champagne, Ms Powell has advertised wines under a false or misleading description in contravention of ss 40C and 40E of the Australian Grape and Wine Authority Act 2013 (Cth) (AGWA Act).

4    This proceeding is not a trade mark case in which the CIVC is relying on any statutory rights that have been infringed. Moreover, it is not a passing off case.

5    It is also important to emphasise other features about what this case is not. In particular:

(a)    It is not about preventing Ms Powell from calling herself Champagne Jayne, although initially the CIVC put a broader case.

(b)    It is not about preventing Ms Powell from referring to or using the name Champagne, providing that it is done in a non-misleading way.

(c)    It is not about the CIVC asserting a monopoly in the use of the word Champagne. It has no such monopoly.

(d)    It is not about preventing Ms Powell from educating the public or consumers about the attributes of Champagne wines or sparkling wines or differences or similarities between them or preventing Ms Powell from promoting Champagne wines or sparkling wines as such, providing that it is done in a non-misleading way. In these reasons, “Champagne wines” is a reference to wines produced in the Champagne region of France, made in accordance with French laws and entitled to bear the name Champagne and “sparkling wines” is a reference to all non-Champagne sparkling wines.

6    Essentially the CIVC’s case has three limbs.

7    First, that Ms Powell engaged in misleading or deceptive conduct by representing that she had an affiliation with the Champagne sector (the sector represented by the CIVC) that she did not have. In summary, I have rejected this case, save for one aspect dealing with Ms Powell’s use of the title “ambassador”; but that issue seems now to have been rectified such that I am unlikely to grant a remedy.

8    Second, that Ms Powell engaged in misleading or deceptive conduct in her use, reference to and promotion of sparkling wines in the context of also referring to or using the name Champagne. I have accepted the CIVC’s case on this aspect in relation to some of Ms Powell’s use of social media.

9    Ms Powell’s use of social media in the promotion and provision of her services and related activities under the name “Champagne Jayne” has been likely to mislead or deceive consumers in terms of her promotion of, and reference to, sparkling wines.

10    That conduct has been carried out in the setting where she has:

(a)    used her description “Champagne Jayne” to self-promote and to promote the provision of her services;

(b)    used and referred to connections with producers of Champagne wines and more generally the Champagne industry;

(c)    used the glamour, Frenchness and accoutrements otherwise associated with Champagne wines and the name Champagne.

11    In that setting she has in the same context referred to and promoted both Champagne wines and sparkling wines or referred to and promoted sparkling wines separately without making it clear that they were not Champagne wines.

12    Such conduct was likely to mislead or deceive actual or potential consumers of Champagne wines or sparkling wines in contravention of s 18 (but not s 29) of the ACL. There are different classes of consumer to consider, namely:

(a)    First, those persons who did not know the difference between such wines. For those persons, her conduct fed into and reinforced, or was likely to have fed into and reinforced, their misconception that there was no difference (i.e. a sparkling wine could be considered to be a Champagne wine even if it did not come from the French region and was not produced with the required method).

(b)    Second, those persons who knew the difference, namely that Champagne wine had to be produced from the French region using the precise method. Such persons would not have been misled or deceived by her conduct.

(c)    Third, those persons who had a vague or unclear appreciation of the difference. Such persons may have been misled or deceived by Ms Powell into thinking that she was referring to Champagne wine when she extolled the virtues of sparkling wine such as Arras sparkling wine (produced in Tasmania) without making it clear that it was not Champagne.

13    Third, I have rejected the CIVC’s case concerning the alleged contraventions of ss 40C and 40E of the AGWA Act.

14    Before proceeding further, it is appropriate to record several matters dealing with how the trial progressed. The trial proceeded in two phases. After opening addresses and all evidence, the parties requested that I adjourn the matter for some months and to make a further reference to mediation. I acceded to that request and made the reference. Earlier this year and before the mediation, a request for pro bono assistance was made by Ms Powell. I made a reference under r 4.12 of the Federal Court Rules 2011 (Cth) given the complexity and the significance of the issues. The mediation was unsuccessful. Final addresses then took place at a reconvened hearing. I am grateful for the assistance given by pro bono counsel. I should also note that during the currency of this litigation Ms Powell has been under no interlocutory injunction and has been free to pursue whatever course she perceived appropriate. Finally, the parties have requested that I postpone all questions of relief until after they have considered these reasons.

15    For convenience, these reasons are divided into the following sections:

    The parties ([16] to [40]);

    Champagne — background ([41] to [90]);

    Appellations of origin ([91] to [99]);

    The name Champagne in Australia ([100] to [113]);

    CIVC’s activities in Australia ([114] to [123]);

    Ms Powell’s business ([124] to [130]);

    Social media ([131] to [142]);

    How has Ms Powell promoted herself? ([143] to [163]);

    Relationship with Arras ([164] to [166]);

    Applicable legal principles: ACL ([167] to [184]);

    What is the relevant class? ([185] to [199]);

    Represented affiliation and ambassadorship ([200] to [216]);

    Consumers and their understanding of “Champagne” ([217] to [229]);

    Conduct in relation to sparkling wines ([230] to [275]);

    Alleged contraventions of the AGWA Act ([276] to [330]);

    Conclusion ([331] to [338]).

The parties

The CIVC

16    The CIVC is a statutory corporation of the Republic of France. In English, the name of the CIVC is the “Interprofessional Committee of Champagne Wine”. In France, the term “interprofession” is used in the wine sector to describe an association of growers, producers, merchants (or negociants) connected with particular wines or groups of wines. The CIVC is the interprofessional association for all growers, producers and negociants of Champagne wines and merchants who deal in Champagne wines.

17    Before 1900, there were a number of associations in the Champagne region which were involved in the protection of the name Champagne both in France and overseas. There were also a number of groups of growers and producers/merchants who took collective measures to fight against a phylloxera epidemic at that time and to replant the Champagne vineyards.

18    In the 1930s, a Champagne Wine Publicity and Defence Committee was established. This Committee was made up of representatives of vignerons and producers.

19    In 1935, a number of vineyard owners and other business operators involved in the trade in Champagne wines established a committee known as the Comité de Châlons, which was constituted by an equal number of representatives of vignerons on the one hand and producers and merchants on the other hand. This committee’s role was to regulate the Champagne market and to deal with production surpluses and shortfalls which could cause major fluctuations in grape prices. This committee was the predecessor of the CIVC.

20    The CIVC was created as an interprofession under French law on 12 April 1941 (1941 Law). The 1941 Law conferred on the CIVC “personalité civile” (legal personality). Accordingly, the CIVC is a legal entity. It is entitled to sue in its corporate name. It represents all growers, producers and negociants who deal in any Champagne wines for various purposes, including instituting and defending Court proceedings in France or abroad. In the proceeding before me, no issue has been taken concerning its separate legal personality and status and the recognition thereof under Australian law. Moreover, no issue has been taken concerning its standing and entitlement to pursue the statutory remedies sought in the present case.

21    The CIVC is based in Epernay and represents the professionals from the Champagne region. It was created to give those persons it represents a forum to meet, discuss and resolve issues and to address common problems. It was also created to facilitate joint marketing and promotion of the wines of the Champagne region. Further, the protection of the intellectual property in the name Champagne is also a part of the work done by the CIVC. There are currently over 110 full-time employees of the CIVC.

22    The CIVC’s functions are set out in the 1941 Law (as amended). There are also a number of regulations (known in French as “arrêté ministériel”) that deal with the functions and operations of the CIVC such as the Arrêté Ministériel of 20 July 1946 and the Arrêté Ministériel of 20 February 1986.

23    Article 8 of the 1941 Law (as amended) charged the CIVC with the functions of inter alia:

(a)    contributing to the organisation of production and ensuring improved co-ordination of the market releases of products;

(b)    organising and regulating the relationship between the various professions within the Champagne sector;

(c)    improving operation of the market by establishing the rules for placing products in reserve and/or the staggered release of products;

(d)    contributing to the quality and traceability of grapes, musts and wines;

(e)    encouraging the sustainable development of wine growing, environmental protection and rational redevelopment of vineyards;

(f)    deciding whether to issue professional accreditations; and

(g)    undertaking information, communication, development, protection and defence campaigns in favour of the pre-determined Champagne registered appellations of origin.

24    Taking these prescribed functions into account, the activities of the CIVC have included:

(a)    undertaking studies concerning the production and commercialisation of Champagne wines;

(b)    playing a consultative role to public authorities in questions relating to regional viticultural and vinicultural matters;

(c)    providing technical and practical assistance to growers, wine makers and negociants necessary to improve the vines and the quality of Champagne wines;

(d)    developing the reputation of and the demand for Champagne wines in France and internationally; and

(e)    undertaking legal steps to protect or defend the interests of those persons whom the CIVC represents, and particularly the name Champagne.

25    Pursuant to the 1941 Law, the CIVC has the power to make regulations relating to the Champagne trade which have the force of law.

26    All the vignerons of the Champagne area (which number about 15,000) and all “maisons de Champagne” (Champagne traders) (numbering 300 or thereabouts) are required by law to subscribe to the CIVC. The CIVC is funded by compulsory charges or levies, as provided for by Article 14 of the 1941 Law (and the regulations as referred to in that Article).

27    In terms of the CIVC’s management structure, pursuant to Articles 3, 4 and 5 of the 1941 Law, the CIVC consists of an Executive Committee and a Permanent Committee, the members of which are appointed by the French Minister of Agriculture.

28    The Executive Committee is the decision making arm of the CIVC. In accordance with Article 4 of the 1941 Law, the Executive Committee consists of twelve persons, six of whom represent growers and six of whom represent producers/merchants.

29    The Executive Committee meets five or six times each year and reports to the Permanent Committee.

30    The Permanent Committee consists of two members who are nominated by the Minister of Agriculture. One is the Chairman of the Vignerons Syndicate and the other is the Chairman of the Negociants/Merchants Union. These two delegates, known as presidents, are responsible for setting the strategy of the CIVC.

31    The day-to-day activities of the CIVC are supervised by its Board of Directors. Presently, the members of the Board of Directors are the General Director of the CIVC and the Directors of the following sections of the CIVC: Finance, Technical, Communication and Legal and Economic.

32    Decisions of the CIVC are given the power of law by being incorporated into a French law including a decree or regulation.

33    The CIVC’s work also has an international dimension. In particular, the CIVC has sought to protect the name Champagne (and the goodwill associated with it) and to promote the interests of the Champagne sector in many countries around the world. Much of this work is carried out through Champagne Bureaus that are funded and operated by the CIVC. Presently, the CIVC operates such Bureaus in Australia, Germany, Austria, Belgium, Brazil, China, Spain, the United States of America, India, Italy, Japan, Luxembourg, the Netherlands, the United Kingdom, Russia and Switzerland. I will elaborate on this later.

34    The CIVC has taken action in many instances for the tort of passing off in relation to the alleged misuse of the name Champagne; see for example J Bollinger v Costa Brava Wine Co Ltd [1960] 1 Ch 262, J Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 All ER 561 and Wineworths Group Ltd v Comite Interprofessionnel du Vin de Champagne [1992] 2 NZLR 327. The CIVC has also previously taken action in Australia asserting a claim for misleading or deceptive conduct concerning the use of the name Champagne by a local distributor of Spanish Champagne (see Comite Interprofessionel du Vin de Champagne v NL Burton Pty Ltd (1981) 38 ALR 664 (and on appeal, unreported, on 2 July 1982)). Proceedings have also been taken by producers of Champagne asserting the tort of passing off; see Taittinger SA v Allbev Ltd [1993] FSR 641 and HP Bulmer Ltd and Showerings Ltd v J Bollinger SA [1978] RPC 79.

Ms Powell

35    In May 2003, Ms Powell launched her own Sydney-based wine education and entertainment events consultancy. At that time, she adopted her apparently long-time personal nickname, “Champagne Jayne”. It could be described as her “stage” name.

36    Subsequently, Ms Powell has been engaged in the following types of activities:

(a)    posting articles and reviews in relation to wine on her website located at the domain name www.champagnejayne.com (the Website);

(b)    posting content in relation to wine on social media (Twitter, Facebook, YouTube, Instagram and Vine);

(c)    appearing at and conducting wine related events (tastings, lunches, dinners, corporate functions and the like).

All of these activities are and have been conducted by Ms Powell under the name Champagne Jayne. On 4 November 2009, Ms Powell registered that name as a business name pursuant to the then Business Names Act 2002 (NSW).

37    During 2009 to 2011, Ms Powell wrote a book called “Champagnes, Behind the Bubbles”, which won the Gourmand 2011 Best French Wine Book (Australia) Award at the Gourmand World Wine Book Awards in Paris.

38    In February 2012, Ms Powell won an award as Harpers Champagne Educator of the Year by Harpers Champagne Summit Awards in London.

39    In early September 2012, in France, Ms Powell was conferred the honour and title “Dame Chevalier” by the Ordre des Coteaux de Champagne (OCC). The title is not one conferred by the French State. The OCC is an independent and separate legal entity with no legal connection to the CIVC.

40    Ms Powell is and has been a knowledgeable commentator and supporter of the Champagne sector and its products. But she has also shown an interest in and promoted sparkling wines whilst at the same time using her name and persona Champagne Jayne and in the context of other references to the name Champagne and Champagne wines. I will return to the detail of this later as it is that behaviour that is central to the CIVC’s concerns in the present case.

Champagne — background

41    What follows in this section is an uncontroversial description of several background matters. It is drawn from the material in evidence, facts of which I have taken judicial notice and inferences drawn from both, separately and collectively.

(a)    The Champagne region

42    The Champagne production area lies about 150km to the east of Paris, consisting of 34,000 hectares of vineyards spread across 319 villages (crus), which have the right to make Champagne, of which 17 rank as “Grands Crus” and 44 rank as “Premiers Crus”. There are four main growing regions: The Montagne de Reims, Vallée de la Marne, Côte des Blancs and Côte des Bar. The main cities are Reims and Epernay.

43    The Champagne region lies at the northernmost limit of feasible vine cultivation for Western Europe. The limit is a function of temperature and available sunshine. The average annual temperature is just 11°C. The mean number of sunshine hours per year is 1,680, which is impoverished by Australian standards. Vineyards are planted at altitudes of 90 to 300m, predominantly on south, east and southeast facing slopes to maximise the available sunshine.

44    The subsoil in the Champagne region is mostly limestone. Such terrain provides good drainage.

45    Essentially, three grape varieties are used: Pinot noir, Meunier and Chardonnay; Arbanne, Petit Meslier, Pinot blanc and Pinot gris are used sparingly. Since the phylloxera epidemic in the late 19th century, vine stocks have been obtained from grafting together French and American vines. Phylloxera vastatrix destroys the root system of vines; in the Champagne region, vines are now grafted onto phylloxera-resistant American rootstocks. The regulations for vine spacing specify a maximum inter-row spacing of 1.5m and an intra-row spacing of 0.90 to 1.5m. The average planting density is about 8,000 plants per hectare.

(b)    Photosynthesis and sugar content

46    For wine and ultimately Champagne wine production there must be a minimum level of sugar (glucose and fructose) in the grape. The potential alcoholic content for the wine produced from the grape is a function of its initial sugar content. Of course, one can enhance the natural sugar content of the grape by later addition of sugar i.e. sucrose (cane sugar or beet sugar) to the juice produced from the grape (chaptalisation) or the wine produced from the juice (dosage).

47    For a wine to claim a particular appellation, it must have a minimum alcoholic degree. Accordingly, the grapes used must have the required sugar content. Accordingly, the grapes must have adequately ripened to the necessary level and in the right conditions.

48    What conditions or process determines sugar content? Photosynthesis.

49    Photosynthetic production of the vine depends on the light energy received by the leaves, on temperature and on water availability in the soil. Oxygenic photosynthesis is the mechanism (as opposed to the anoxygenic mechanism). There are two types of reactions that take place.

50    First, there are the “light reactions” that consist of electron and proton transfer reactions. Photons excite the electronic state of antenna pigment molecules in chlorophyll. The electronic excited state is transferred over the pigment molecules as excitons. Some excitons are trapped by a “reaction centre” protein which the pigment molecules are anchored to. The trapped excitons provide the energy for the primary photochemical reaction of photosynthesis. The energy kickstarts a series of rapid electron transfer reactions, ultimately causing the removal of electrons from H2O and the release of O2. The transfer of electrons from water molecules then produces the reduced form of nicotinamide adenine dinucleotide phosphate (NADPH). Ultimately, most of the light energy is stored as a form of chemical free energy (redox free energy) in NADPH. Further, aspects of the electron transfer reactions concentrate protons in a complex membrane system (consisting of protein complexes, electron carriers and lipid molecules) and create an electric field involving a “proton gradient” across the membrane. This enhances the electrochemical potential of the protons. The energy “stored” in such potential is then used to ultimately produce adenosine triphosphate (ATP). In summary to this point, light energy has been converted to chemical energy stored in NADPH and ATP. And as part of this process, O2 has been produced (hence an oxygenic mechanism).

51    Second, there are the “non-light reactions” which use the chemical energy produced from the “light reactions”. Atmospheric carbon dioxide is incorporated into the organic carbon by the biochemical conversion of CO2 to a carbohydrate (and ultimately various types of sugars). Reduction of carbon occurs. The energy for this reduction is provided by the energy rich molecules that are produced from the “light reactions”, being ATP and NADPH which provide the source for chemical bond energy. This achieves the required re-arrangement of covalent bonds between carbon, hydrogen and oxygen. This carbon reduction mechanism can occur in the dark. It is known as the Calvin cycle. Various sugars are produced, which are then used for:

    the growth of the branches and their components;

    the root system;

    energy for the metabolism of the system as a whole;

    relevantly for present purposes, storage within the grape in the form of glucose and fructose.

52    As I say, this photosynthetic production depends on the light energy received, on temperature and on water availability in the soil. Because of the environmental conditions of the Champagne region, being predominately its coolness and reduced sunshine, the amount of sugar content and the rate of ripening of the grapes may be more problematic than for other regions. Accordingly, drier wines are generally produced, although the sugar content can later be enhanced if desired.

(c)    How to make Champagne

Step 1 — Pressing

53    The first step is pressing the grapes that have been harvested. Champagne presses range in capacity from 2,000 to 12,000kg of whole grapes. They are mechanical and computer controlled horizontal presses, having replaced manually operated vertical basket presses.

54    The production of the white wine from the grapes (two thirds of the harvest of which are in fact black-skinned) requires adherence to five principles: pressing immediately after picking; whole cluster pressing; a gentle, gradual increase in pressure; low juice extraction; and fractionation, where the clearer and purer juices are drawn off at the beginning of pressing and separated from those produced at the end.

55    Juice extraction is limited to 25.5 hectolitres per 4,000kg marc; the “marc” is a unit of measurement for a press-load of grapes. The extraction process separates the first pressing juice (cuvée) of 20.5 hectolitres; the expression “cuvée” is also used to describe a precise blend of several base wines. Then the second pressing juice (taille) of five hectolitres is extracted. The cuvée is the purest juice of the pulp, rich in sugar, tartaric acid and malic acid. Cuvée musts (grape juice) are said to produce wines with finesse, subtle aromas, a refreshing palette and good aging potential. Contrastingly, taille musts have a lower acid content and higher mineral content. They produce more intense aromatic wines that are fruitier in youth than those made from cuvée, but less age-worthy due to the lower acid content.

56    Before proceeding further, I should also say that one way to make rosé Champagne wine is via maceration at this point. Grape solids are soaked in their juice to allow the red pigment (anthocyanins) to dissolve into the juice prior to fermentation (99% of all grape juice of whatever colour grape skin is clear-grayish in colour). Destemmed black-skinned grapes are left to macerate in a tank for some 24 to 72 hours to achieve the desired colour. The other way to make rosé Champagne is to add red wine to the blend of base wines at the assemblage stage (see step 4).

Step 2 — Clarification (débourbage)

57    The extracted juice is treated with sulphites, which act as a dual-function preservative. Their antiseptic properties inhibit the growth of bacteria. Their antioxidant actions safeguard the physicochemical properties of the wines ultimately produced.

58    Settling or clarification (débourbage) of the juice is then allowed to occur prior to fermentation. In the first few hours the juice is cloudy. This is, in part, due to enzymes that are naturally present in the juice. There are also particles suspended in the juice including particles of grape skin and seed. After 12 to 24 hours, the clear juice is drawn off; most of the flocculated matter will have formed a sediment at the bottom.

59    The clear juice is then further clarified by fining. A suitable agent is added that takes advantage of the adsorption properties of the agent to remove the remaining particles in suspension.

60    The clarified musts are then transferred to the fermenting vats for the first stage of fermentation.

Step 3 — Primary fermentation

61    To produce Champagne wines there are two fermentation stages. Let me discuss the first of these.

62    The primary fermentation process mostly occurs in thermostatically controlled stainless-steel vats. Fermentation now rarely takes place using oak casks or tuns.

63    There are various additions made to the juice.

64    First, sugar may be added to raise its degree of potential alcohol so that the wine produced ultimately contains a minimum alcohol level of around 11%; this is known as chaptalisation.

65    Second, various yeasts (unicellular microorganisms) are added, either in liquid form or as a dried active yeast. This produces controlled fermentation. Simply described, the yeasts metabolise the sugar in the juice, producing CO2 and ethyl alcohol (ethanol). Further, longer hydrocarbon chain alcohols than ethanol and esters (a chemical produced by an acid reacting with alcohol) are also produced that have a major effect on aroma and flavour. When all or most of the sugar in the juice has been transformed into alcohol, “wine” may be said to be produced. The CO2 produced would normally bubble out of solution, but later in the process of making Champagne wine, CO2 is “trapped”.

66    The process takes about a fortnight. Because the reaction is exothermic, it has to be controlled to ensure that temperatures do not rise above about 20°C; above such levels, fermentation may be chemically countermanded.

67    After this fermentation process, what is described as malolactic “fermentation” may take place where malic acid is broken down into lactic acid; this is not, however, strictly a fermentation. The idea is to convert the sharp malic acidity to the softer lactic acidity. I should say that the primary natural acid in grapes (and the wine) is tartaric acid, with malic acid the second most abundant. Generally, acidity is important for two reasons. First, it is the “backbone” of the wine; acidity contributes to a wine’s aging ability. Second, there is the question of taste. The sour taste of acidity is said to be a counterpoint to the sweet taste from the sugar and, less so, consequent alcohol.

Step 4 — Assemblage

68    After fermentation, the blending of different wines, known as assemblage, then takes place.

69    The wines (base wines) may be blended from different varieties of grapes, different vineyards and different vintages depending upon the type of Champagne wine sought to be produced. Many base wines (up to hundreds), which at this stage are only still wines (vin clair), may be blended. This is an art. The size, diversity and history of the Champagne region (including the stores of reserve base wines) is conducive to maximal choice and creativity on a scale that is unlikely to be available elsewhere.

70    Decisions are required as to whether to produce vintage Champagne wines (wines from the same year grape harvest) or non-vintage (blending wines from different grape harvest years).

71    Once blending is completed, the wine must be stabilised. This is done by chilling. The aim is to crystallise any tartaric salts (tartrate crystals) and then to remove them. The idea is to prevent crystallisation of such salts in the bottled Champagne wine as it affects appearance. Depending on the method used, stabilisation may take place up to a week.

Step 5 — Bottling (tirage)

72    Just before bottling, a solution known as “liqueur de tirage” is added. This is a mixture of still wine with cane or beet sugar. Also added is some further yeast. This solution is designed to induce the second stage fermentation within the bottle. Additives are also used to assist in the “remuage” process (riddling) described in step 6. Bentonite is used to make the sediment produced in the bottle heavier; this encourages it to slide down the neck of the bottle towards and near the cork.

73    Bottling then takes place. The bottles used are of strong glass to withstand the high pressure. At room temperature, the pressure inside a finished bottle may be up to six atmospheres (one atmosphere equals 14.7 pounds per square inch) predominantly produced from, inter alia, the partial pressure of CO2 within the bottle. Bottles may range from a standard size to a Magnum (two bottles), Jeroboam (four bottles), Methuselah (eight bottles), Balthazar (16 bottles) or a Nebuchadnezzar (20 bottles).

74    Once the bottles are filled, they are hermetically sealed (but not completely) with a stopper (bidule) held in place by a crown cap. The bottles are then transferred to a cellar and then stacked “sur lattes” (horizontally). Inside the bottles for the next six to eight weeks, the wine undergoes a second fermentation. Again, yeasts metabolise the further added sugar to produce ethanol and CO2.

75    A principal feature of Champagne wine production is this second stage fermentation process within the bottle. Moreover, it must occur within the same bottle which is then sold as the Champagne wine.

76    The bottled wines spend a minimum of 15 months maturing in the cellar. In part, this is to allow maturation on the lees. Once all sugars added by the liqueur de tirage have been consumed, the yeast cells are broken down and destroyed by a chemical process known as autolysis. The lees are the deposits of spent and broken down yeast cells left over after the second fermentation stage. It is said that the lees are nourishing and function as a natural antioxidant. It is said that this period of aging on the lees is important to the creation of Champagne wine’s character. The chemicals released by autolysis interact with the wine, importing what has been described as flavour, complexity and textural finesse.

77    In addition to this process, a small and slow amount of oxidation is allowed to occur. As the stopper does not give a seal that is perfectly air tight, minute amounts of oxygen are able to enter the bottle permitting some oxidation. Further, a small amount of CO2 also escapes.

78    Together, it is said that the two processes of autolysis and slow oxidation beneficially and slowly transform a young wine into a mature wine.

Step 6 — Riddling (remuage)

79    Towards the end of the resting period, the bottles are rotated. This loosens the deposit left by the second fermentation stage and allows it to collect in the neck of the bottle near the stopper. But for that to occur the bottles need to be progressively tilted neck down, driving the sediment into the neck by gravity. Once riddling has been completed, the bottles are ready for disgorgement.

Step 7 — Disgorgement and dosage

80    After riddling, one is left with sediment that has collected in the necks of the bottles which requires removal (disgorgement).

81    The neck of each bottle is plunged into a refrigerating solution at –27°C. This causes a frozen plug to form at the neck containing, inter alia, the sediment. The cap is quickly removed, and the frozen plug is expelled (under the internal pressure built up in the bottle). The process takes place quickly to minimise loss of wine and loss of pressure.

82    Dosage then occurs. A small quantity of liqueur is added (liqueur d’expédition or liqueur de dosage). This is a mixture of cane sugar and wine, either the same wine as in the bottle or a reserve wine. Dosage makes up the lost volume from disgorgement, but it also has another function. The quantity of sugar added determines the type of wine depending upon the position along the desired spectrum from Extra Brut (0 to 6 grams of sugar/litre) to Doux (more than 50 grams of sugar/litre).

Step 8 — Final corking

83    After dosage, the bottle is immediately (and finally) corked. The cork is squeezed into the neck of the bottle and covered with a protective metal cap (capsule), which is then held in place with a wire cage (muselet). The bottle is then shaken vigorously so that the dosage liqueur marries with the wine. Labelling then occurs, including wrapping the cork and muselet with foil down to the neck-band.

(d)    Sparkling wine (non-Champagne)

84    It is appropriate to make some brief observations about sparkling wine.

85    First, by definition, it is not produced in the Champagne region. Accordingly, the grapes produced will not have the characteristics produced by the influence of factors that flow from what the French have termed the terroir, being the identity and character of a particular place in terms of soil, topography and climate. The concept of terroir can be looked at in a macro sense (region) or a micro sense (differences between vineyards).

86    Second, sparkling wines may not be produced from Champagne’s three grape varieties. Rather, the grape varieties used may be high yield and lower flavoured (apparently) varieties such as Chenin blanc, Colombard, Trebbiano, Semillon and the like. Moreover, even if Champagne variety grapes are used, differences will still flow because of differences in terroir, differences in growing and ripening techniques and different harvesting techniques.

87    Third, as I have said, the art of assemblage (blending of base wines) in the Champagne region, given its sheer size, diversity and history, permits of much greater scope and display of expertise, if not artistry, than in smaller, less diverse and newer regions.

88    Fourth, many sparkling wines are produced where the second stage fermentation does not occur within a bottle, let alone the same bottle that is ultimately sold as sparkling wine.

89    Fifth, even putting all these differences to one side, in terms of any one or more of the production steps 1 to 8 described earlier (assuming that they have been used to produce the sparkling wine):

(a)    different time periods may be used;

(b)    different yeasts and other additives may be used;

(c)    different types of equipment may be used;

(d)    there may be different levels of skill and experience of the personnel involved;

(e)    different quality controls may be used.

90    One can only confidently say about sparkling wine that it is wine made from grapes identified on the label with the stipulated alcoholic content, which wine contains dissolved carbonic gas kept bottled under pressure. No other method or quality indicia is necessarily indicated by the expression “sparkling wine”, whatever the labelling superlatives or use of French like terms, get up or other accoutrements. No party or evidence suggested otherwise. That is, of course, to say nothing about the taste or quality of a particular sparkling wine and whether such taste or quality is comparable to Champagne wine.

APPELLATIONS OF ORIGIN

91    In addition to being a region in France, the name Champagne is also a French controlled appellation of origin (AOC) relating to wines produced within a defined part of the Champagne region and in accordance with strict controls imposed under French law. Prior to the creation of AOCs, the name Champagne was protected as an appellation of origin (AO).

92    The concept of AOs has a long history in France. Geographical names have long been used in France to designate (among other products) wines which have particular characteristics and qualities. The particular characteristics and qualities of such wines reflect both the selection of areas which were suitable for growing particular grape varieties and the development of local viticulture, harvesting and wine-making practices, which have been adhered to in those areas by long standing custom.

93    The concept of an AO was first enacted into French law in the 1905 general trade descriptions law (as amended by a 1908 law). The current definition of an AO under French law is:

An appellation of origin is the name of a country, a region or a locality which is used to designate a product which originates there and the qualities or characteristics of which are derived from its geographical environment, including factors both natural and human.

94    This definition dates back to 1966, although it now forms part of the French Consumer Code, an overarching French law that brings together various consumer protection provisions.

95    Consistently with the use of geographical names, an AO is more than a mere indication of source. It incorporates the notion of the interaction between natural factors (for example, micro-climate and soil formation) and human factors (for example, wine-making techniques).

96    In 1935, AOCs were created under French law as a new category of AOs. The AOC for the name Champagne was created in 1936.

97    The requirements associated with the use of AOCs are more rigorous than the requirements associated with the use of AOs. In order to lawfully bear an AOC, the wine must not only originate from the delimited region, but must comply with detailed regulations (including limitations as to grape varieties, viticulture and wine-making).

98    The terms AO and AOC (and some of the concepts which they represent) are not part of Australian law. However, Part VIB of the AGWA Act contains a regime for the protection of “geographical indications” for wine. In s 4(1) of the AGWA Act, the term “geographical indication” is defined as “an indication that identifies the goods as originating in a country, or in a region or locality in that country, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographic origin”.

99    The name Champagne is, and has since 1994 been, a registered geographical indication under the AGWA Act and its earlier forms.

the name Champagne in Australia

100    As I have said, the term Champagne wines describes wines produced in the Champagne region of France, made in accordance with French laws and entitled under those laws to bear the name Champagne. The wines Arras, Digby, Jansz, Nyetimber, Rococo, Blason de Bourgogne, Elstree, Gusbourne and Asti Spumante are only sparkling wines.

101    In Australia in and prior to September 2011 the name Champagne was used by a number of Australian producers to label and market their sparkling wines. Such a usage was well publicised and is supported or can be inferred from the following examples:

(a)    In “Champagne – how and when to serve it” in Bride, Autumn 1983, the author stated:

“The Argyle Function Centre, which caters for weddings in Sydney, says the difference between French champagne and the Australian product is about $13 a bottle, and there are eight glasses in every bottle”

(b)    Diane Holuigue stated in The Epicurean November–December 1984 (referring to the Vin de Champagne awards):

“Supported by all the importers of French champagne (interestingly, this is one of the few countries in the world where we writers must add the word “French” since to the rest of the world champagne is French by definition)…”

(c)    The use of the term “French champagne” by James Halliday in The National Times (December 1980) and National Times Financial Weekly (31 May 1984);

(d)    The use of the term “French champagne” by Mary Machen in The Tasmanian Mail, 3 June 1985:

“When Holly hosts a dinner at home, guests can be assured that the accompanying wine will be French Champagne – and only the best of vintages”.

(e)    In The Epicurean September–October 1984 the author stated:

“Australians seem always to have loved champagne, but our current love relationship with it is surely unprecedented. We’ll probably be buying it at the rate of a million bottles a year by next year. And that’s the real thing … the French stuff!”

(f)    In the Canberra Times, 3 May 2000, Susan Parsons wrote:

“The centre in Sydney is dedicated to furthering knowledge and understanding of genuine champagne”.

(g)    In “The Australian Wine Educator” – Spring–Summer 2000–01, the role of the CIVC to protect the good name and reputation of the wines of the region was explained by reference to the following history:

“During the 18th and 19th Centuries the fame of the wines of Champagne spread through France and England, then Switzerland and Germany, and eventually to Australia, the United States and other parts of the world. As the reputation of the wines increased, the name itself began to be appropriated by wine producers in other regions of France and other parts of the world to describe their own sparkling wines”.

(h)    In the April 2002 article by Kate McIntyre entitled “Champagne comes from France”, the author began:

“Enough. I’ve had it. I’m sick of being the Champagne Nazi. When I go to a restaurant and ask for a glass of Champagne, why do people insist on offering me Australian sparkling wine as an alternative? Sure it can be very good – terrific, in fact, but that’s not what I asked for. I asked for Champagne, from Champagne. In France”.

(i)    In “With Bubbly Breakfasts; Stay in Touch This Week” in the Sydney Morning Herald on 31 August 2009, Sean Nicholls and Emily Dunn stated:

“The event, organised by the Champagne Bureau, a Sydney outfit that promotes the real French stuff to the bubbly‐loving Australian public …”

102    In Australia, the general use of the name Champagne as it had been applied to sparkling wines had ceased by September 2011 as part of the phase out in Australia of a range of European geographical indications.

103    The phase out was the result of bilateral negotiations between Australia and the European Union in relation to trade in wine. It was initiated by the Agreement between Australia and the European Community on Trade in Wine (1994 Agreement), which entered into force on 1 March 1994. The 1994 Agreement was given statutory force under Australian law by the Australian Wine and Brandy Corporation Amendment Act 1993 (Cth) which amended the Australian Wine and Brandy Corporation Act 1980 (Cth). Under Title II, Articles 6(1), 7 and Annex II of the 1994 Agreement, Australia agreed to protect a range of European geographical indications, including Champagne. However, under Title II, Articles 8(1) and 9 of the 1994 Agreement, the phase out of the use of the name Champagne in Australia as a description for Australian wine was subject to a transitional period to be agreed.

104    Such a phase out was finalised by a further Agreement between Australia and the European Community on Trade in Wine, which entered into force on 1 September 2010 (the 2010 Agreement); the 1994 Agreement was terminated on 1 September 2010. Under Title II, Articles 12(1), 13 and Annex II of the 2010 Agreement, Australia again agreed to protect a range of European geographical indications, including Champagne. Under Title II, Article 15 of the 2010 Agreement, the protection of the Champagne geographical indication was subject to the proviso that it would not prevent the use in Australia of the name Champagne in the description and presentation of an Australian wine prior to 1 September 2011. Accordingly, on and after 1 September 2011, the name Champagne could not be used for Australian wines, including sparkling wines.

105    The prohibition on the use of the name Champagne in the description and presentation of wines which were not Champagne wines under Australian law is now set out in Part VIB of the AGWA Act.

106    It is accepted by the parties that the name Champagne means, and has for many years meant, to at least some members of the public in Australia:

(a)    the Champagne region of France; and

(b)    wines produced from the Champagne region using the grape varieties and methods of cultivation and vinification, and complying with the standards, composition and specifications required for Champagne wines.

107    But Ms Powell has gone further. She contended that the meaning referred to in [106(b)] is “overwhelmingly” the meaning that most members of the public would attach to Champagne. But in cross-examination Ms Powell gave evidence which supports the proposition that the name Champagne is used by some Australians to refer to any sparkling wine. Ms Powell said:

Some people do know that champagne can only come from Champagne, and they will only drink champagne, and some people — especially in Australia — call everything champagne.

108    At a later part of her cross-examination, Ms Powell confirmed her earlier evidence:

Well, what you said yesterday is — I will read it to you?---Thank you.

Page 163, line 15:

Some people do know that champagne can only come from Champagne, and they will only drink champagne, and some people — especially in Australia — call everything champagne.

Do you recall giving that evidence?---Well, you’ve just read it to me; it must be right.

Yes, well, that is - - -?---Yes.

- - - your understanding of the position, isn’t it?---Unfortunately, yes.

109    Other aspects of Ms Powell’s evidence demonstrate this broader use of the name Champagne. Ms Powell was cross-examined about an early brochure used in connection with her WineWorks International business which included a section titled “Champagne + Food Pairing”. Under that heading, the following appeared:

Strawberries

This is a classic for romantic occasions, but it only works with very sweet sparklers! Try this with Asti Spumanti from Italy, or Pommery Pop.

Ms Powell sought to downplay the reference to an Italian wine in this document as a “regrettable oversight”. Although she did not write this section of the brochure, nevertheless this is an indication of how the name Champagne has been used and understood by some people in Australia, and Ms Powell’s knowledge of that fact.

110    Further, as I have said, the name Champagne was used by a considerable number of producers on labels of, and in marketing materials for, Australian wines. Throughout the 1980s, 1990s and early 2000s, examples of commercially available Australian wines labelled and described as Champagne were: KILLAWARRA, MINCHINBURY, SEAVIEW, SEPPELT GREAT WESTERN and WOLF BLASS. For example, the 1999 publication titled The Professional Australian Wine Guide contained an image of a MINCHINBURY CHAMPAGNE label and stated: “Generic styles. A style of wine which may be a single variety or a blend of grape varieties, taking its name from an existing European region or style of wine. Examples include Champagne wine (taken from the French region) and Port (taken from the Portuguese fortified wine). These generic styles are becoming increasingly obsolete”.

111    Ms Powell also referred to the definition of “champagne” in the 6th ed of the Macquarie Dictionary (published in 2013) which she asserted captured the position in Australia being:

1.    a sparkling white wine produced in the wine region of Champagne, France.

2.    (in unofficial use) a similar wine produced elsewhere.

3.    the non‐sparkling (still) dry white table wine produced in the region of Champagne.

4.    a very pale yellow or cream colour.

–adjective

5.    having the colour of champagne.

6.    of or relating to any event or activity made special by the serving of champagne: champagne flight; champagne breakfast.

7.    up-market; luxury: champagne holiday.

Usage: A number of wine names refer to districts (e.g. Champagne in France, Chianti in Italy) but have come to be used for similar wines produced outside these districts. In deference to the original districts, Australian winemakers have dropped these names in favour of varietal names, or invented names such as fumé blanc, particularly after the Australian–European Community Agreement on Trade in Wine (2008). Nevertheless, a word like champagne is so widely known in English that it is likely to persist in common usage, whatever appears on bottles.

112    For completeness, I should note that despite the historical informal use of the name Champagne in Australia in connection with Australian wines, Australia has long been a significant market for Champagne wines properly so called. Between 2001 and 2013, each year an average of more than 3,000,000 bottles of Champagne wines were exported to Australia. During that period, Australia has been one of the top ten markets for Champagne wines internationally.

113    In summary, the evidence well supports the following inferences:

(a)    First, prior to September 2011, in the context of descriptions for wines, the name Champagne was applied in Australia to Champagne wines properly so called and sparkling wines.

(b)    Second, and consistently with the first proposition, a significant proportion of Australian actual and potential consumers of either or both of Champagne wines and sparkling wines prior to September 2011 would have been likely to understand or believe that the name Champagne could be applied to either.

(c)    Third, a significant proportion of Australian actual and potential consumers of either or both of Champagne wines and sparkling wines prior to September 2011 would have been likely to understand the correct attribution and reference applying to the name Champagne.

(d)    Fourth, prior to September 2011, there would have been a significant proportion of Australian actual and potential consumers who would have been unclear one way or the other. The proportion of consumers in this category in all likelihood would have been greater than in each of the other two categories.

(e)    Fifth, after September 2011, the percentages of consumers in each of classes (b) and (d) would in all likelihood have diminished with the percentage of consumers in class (c) correspondingly increasing. This would in all likelihood have been caused, inter alia, by the phase out described earlier and also partly as a result of the CIVC’s activities described below. But no quantitative measure or precision to these propositions is available or could practicably be calculated.

CIVC’s activities in australia

114    The CIVC has for several decades done a significant amount of work in Australia to publicise and promote the name Champagne in connection with Champagne wines and the Champagne AOC. Further, in light of the phase out of the use of the name Champagne in relation to sparkling wines, a significant focus of the work done by the CIVC in Australia has been the rehabilitation of that name to ensure that it was applied only to the Champagne sector. As I have said, the present case is not a passing off case. But the activity of the CIVC in Australia, to the extent that it has raised awareness of Champagne wines and how the name Champagne should be understood by consumers in Australia, is not irrelevant contextual material as to how consumers might now understand the name Champagne.

115    The following is an example of such work.

116    First, since 2000, the CIVC has taken action to prevent the misuse of the name Champagne in Australia.

117    Second, the CIVC has also established a Champagne Bureau in Australia to assist with its work to develop the reputation of, and protect, the name Champagne. The Australian Champagne Bureau (previously known as the Champagne Information Centre) (the Bureau) was established in 1971. The Bureau is, and has always been, funded by the CIVC. The Bureau has extensively publicised and promoted the name Champagne in Australia in connection with Champagne wines and the Champagne AOC by promotional activities including tastings, dinners, training courses and seminars and by the distribution of promotional and educational materials (such as tasting guides).

118    Third, one of the main promotional activities undertaken by the Bureau is the Vin de Champagne Award which was first held in 1974. The Award is held every two years and receives a significant amount of publicity in the general media. It has the following characteristics:

(a)    It is a prestigious award;

(b)    Originally it was open only to wine professionals, but a non‐professional category and student category was later introduced;

(c)    Entrants must answer a series of technical questions in relation to Champagne wines, the Champagne AOC and the Champagne region of France;

(d)    A number of previous winners have gone on to have careers in the wine industry both in Australia and internationally.

119    Fourth, the Bureau has conducted dozens of promotional and educational events in Australia, including tastings, dinners, training courses and seminars. For example:

(a)    25 September 2008 – Champagne master class conducted by Daniel Lorson at Regency Hotel School for lecturing staff and international students in Cordon Bleu and International Hotel School Classes;

(b)    28 September 2008 – Champagne dinner in Pemberton with local winemakers;

(c)    12 December 2008 – Champagne tasting for the Oenophiles wine group;

(d)    22 August 2011 – Champagne Bureau 2011 Trade Tasting: “Wine & food media, retail trade, sommeliers, wine educators, food and beverage managers of major hotels and fine wine buyers attended throughout the day”;

(e)    21 May 2011 – Friends of Champagne tasting – WA friends of Champagne;

(f)    2011: “To help sort the Moet from the Mumm, the Champagne Bureau runs master classes every two years”;

(g)    2012 Vogue Living Champagne Dinners: “These prestigious dinners are a highlight on our annual calendar and offer the opportunity for lovers of Champagne to enjoy their favourite style of wine alongside fine produce, prepared by some of Australia’s top chefs”;

(h)    2013 National Master Class Series: “To provide a forum for Champagne enthusiasts, trade and media across Australia to taste and discuss a selection of vintage, non-vintage and other styles of Champagne wines”.

120    Fifth, the Bureau’s website was set up in 2006 as a promotional tool for Champagne wines; there is no evidence as to the amount of traffic to that website.

121    Sixth, the Bureau’s Facebook page has been active since 2010. The posts primarily concern the above promotional activities, namely, the Vin de Champagne Award, the Vogue Living Dinners and Champagne Master Classes. But there is no evidence as to the amount of traffic to the Bureau’s Facebook page from 2010 to 2014. However, 674 “likes” of the page are recorded as at 20 October 2014, although there is no breakdown. It is not clear whether the people who have “liked” the page are the Bureau’s employees, entrants to the Vin de Champagne Awards, wine & food media, retail trade, sommeliers, wine educators, lovers of Champagne or ordinary Australian consumers.

122    Seventh, the Bureau’s Instagram page has been active since 2014. The posts primarily replicate images from the Bureau’s Facebook page. But no evidence has been supplied about the amount of traffic to the Bureau’s Instagram page for 2014. However, 249 “followers” of the page were recorded as at 21 October 2014, although there is no breakdown of these followers.

123    In summary, the CIVC’s activities through the Bureau in Australia are likely to have had some educational effect in Australia concerning the proper use of the name Champagne as it applies to wines. I have taken this into account in drawing the inferences and conclusions set out in [113] above and [217] to [229] below.

Ms Powell’s business

124    Ms Powell’s Champagne Jayne business is directed to the promotion of herself and Champagne wines. But about 10% of her activities in the Champagne Jayne business relate to sparkling wines. In using the term “business”, I am referring to her activities in creating her persona “Champagne Jayne” and then under that label and persona providing services such as entertainer services, public speaking services, event management services and master of ceremony services for a fee. Such services also include from time to time reference to and use of Champagne wines and sparkling wines. Indeed, from time to time she has promoted sparkling wines such as Arras, although I accept that she has not received a separate fee from a wine producer to promote its products. She may, however, have received free product from a producer to use in providing her services and may have had some of her expenses paid for.

125    In 2009, Ms Powell:

(a)    registered the business name CHAMPAGNE JAYNE (Business Name);

(b)    established the Website;

(c)    established the Twitter account @champagnejayne (Twitter Account); and

(d)    established the CHAMPAGNEJAYNE Facebook Page (Facebook Page).

126    In 2010, Ms Powell established the CHAMPAGNEJAYNETV YouTube website (YouTube Website).

127    In 2013, Ms Powell established:

(a)    the champagnejayne Instagram account (Instagram Account); and

(b)    the Champagne Jayne Vine account (Vine Account).

128    On 31 January 2012, Ms Powell applied to register the words CHAMPAGNE JAYNE as a trade mark in respect of “Entertainer services; public speaking services; author services being the writing of texts (other than publicity texts); event management services (organisation of educational, entertainment, sporting or cultural events); master of ceremonies services”. The CIVC has opposed this trade mark application. The opposition has not yet been set down for hearing before the Registrar of Trade Marks.

129    Generally, Ms Powell has used the Business Name, the Website (including blogging thereon), the Twitter Account, the Facebook Page, the YouTube Website, the Instagram Account and the Vine Account to operate the Champagne Jayne business. Ms Powell was equivocal as to whether she used Instagram and Vine for her business but I have little doubt that her use of such tools also facilitated her business.

130    Before proceeding further, it is appropriate to make some general observations concerning social media.

SOCIAL MEDIA

131    “Social media” is the contemporary phrase used to describe modern digital methods of communication having extensive reach and popularity; the forms of social media and the features thereof are continuously evolving. It is appropriate to give a general description of Twitter, Facebook, YouTube, Instagram and Vine before elaborating on Ms Powell’s use of such tools to promote herself and her services.

(a)    Twitter

132    Twitter is an online network for individuals and businesses to instantaneously post short written messages, photos, videos or links on their personalised profile pages. Individual Twitter pages are identified by a username preceded by the “@” symbol and contain a short “bio” description about the author. Posts are called “Tweets” and are limited to no more than 140 characters. A “hashtag” may be included in a Tweet, being the symbol “#” followed by a keyword or phrase, to assign a particular topic to that Tweet and to ensure that the Tweet appears in that topic’s Twitter feed (that is, Twitter page). Users can search for a particular “hashtag” or “@username” on the Twitter site and thereby see all Tweets containing that hashtag or mentioning that username. Tweets are visible to the public by default but can be restricted to certain “followers”.

133    Followers are those who have signed up to Twitter and who have chosen to subscribe to other users’ Twitter profiles so that the other users’ Tweets are immediately displayed and continuously updated in real-time on the follower’s homepage. The homepage, which is in substance a stream of information, is also known as a “timeline”. Users can choose to receive “push notifications”, i.e. messages to their mobile device, each time there is any activity on their timelines. Each Twitter profile contains a visible list of the followers of that page. Followers can reply to or comment on a Tweet, which begins a cascading conversation of Tweets. But a Tweet reply that begins with “@username” of the person being replied to is only seen on the sender’s public profile and the home timeline of the recipient if he follows the sender and those who follow both the sender and recipient. A Tweet that contains “@username” anywhere in it will be displayed on the sender’s profile and the home timeline of the recipient if he follows the sender and any followers of the sender. Followers can also share other users’ Tweets with their own followers on their profiles with or without their own comments. The act of sharing another’s Tweet, that is, forwarding it on, is known as “retweeting”. Followers can also “favourite” a Tweet if they endorse or approve of it which is recorded by a star symbol below the Tweet and is listed in the “favourites” tab on the follower’s profile. A Tweet can be deleted from a Twitter page by its author which in turn deletes any retweets of that Tweet. But deleting a Tweet does not erase retweets with additional comments, copies of the Tweet that are not retweets and any external copy of the Tweet not on the Twitter website.

134    Ms Powell created her Champagne Jayne Twitter account under the name “Jayne Powell: @champagnejayne” in March 2009. Her account profile contains the description “Multi-Award winner Champagne Jayne is your accessible guide to the world’s most enigmatic wine”. It lists her location as “UK, France, Australia”. As at 2 November 2014, Ms Powell had Tweeted approximately 21,000 times, including links to around 2,500 images and videos. Ms Powell frequently Tweets about Champagne wines and publishes links to her articles, videos hosted on her blog (www.champagnejayne.com), highlights of her visits to the Champagne region, her Champagne experiences at various restaurants and events around the world as well as other personal social matters unrelated to wine. As at 9 December 2014 there were around 3,420 followers of the Champagne Jayne Twitter account.

(b)    Facebook

135    Facebook is an online social networking tool that allows users to create either personal profiles or business pages in order to connect and communicate with other people. Users can post messages (short messages are often described as “status updates”), photos, videos or links on their Facebook pages that are generally accessible, and can be interacted with, by the public subject to any privacy settings that the page creator has put in place. If privacy settings have been activated on a Facebook profile, only certain people approved by the profile creator are able to view or interact with the posts on that profile. Facebook users can leave comments on posts or “like” posts by clicking a “thumbs up” icon beneath the post. The comment or “like” is visible to visitors to the page on which the post appears and the page of the person leaving the comment or clicking “like”. Posts can also be shared among Facebook users. An individual can connect with another person on Facebook via a “friend request” which, if accepted, adds that individual to the other’s personal profile, allowing access to posts that appear on that profile depending on privacy settings. When a user “likes” a particular Facebook page by clicking the “like” icon, that conveys a positive opinion of the page and adds the page to the list of “likes” that appears on the user’s profile. “Liking”, or subscribing to, a page also results in posts from that page being automatically displayed in the “news feed” of the person who liked the page, which is a continuously updating list of posts on a user’s homepage from that person’s “friends” and pages that he is following. Only the total number of “likes” that a page has received can be seen on that page; the identity of those who have liked the page may be discernible by the author of the page. A notification is also received by a user whenever there is activity on their Facebook profile or page, for example, a comment is made on their post or someone chooses to “like” their page.

136    Ms Powell started her Champagne Jayne Facebook page in November 2009. It contains the description “[d]edicated to increasing your understanding and enjoyment of champagne”. As at 2 November 2014, there were approximately 500 Facebook users who had “liked” the Champagne Jayne Facebook page and who accordingly received on their news feed any posts uploaded to the Champagne Jayne page. Ms Powell uses the Champagne Jayne page to publish blogs, images, articles and news about Champagne wines and occasionally sparkling wine. These are viewable by the public.

(c)    YouTube

137    YouTube is a website that allows visitors to upload, watch and share videos. Generally videos are viewable by the public but privacy settings can be put in place by the content creator. Videos can be found by either searching the entire website or accessing a specific “channel” which is a YouTube accountholder’s page that features videos that they have created and contains a short description of the creator. Users of YouTube can subscribe to particular channels for free which automatically updates that channel’s video content onto the user’s subscription feed. The number of subscribers to a channel appears on that channel’s homepage. Videos and channels that are recommended viewing by YouTube also appear on a user’s homepage. Audience members can engage with each other and the video’s creator on YouTube by leaving public comments (and replies thereto) on videos, clicking the “like” or “dislike” icon beneath videos and sharing videos via other social media portals. Video owners have the right to remove comments that have been placed on their videos. The total number of times each video has been viewed also appears next to the video. A similar website, Vimeo, is another vehicle for online video sharing.

138    In January 2010, Ms Powell created a YouTube channel under the name “ChampagneJayneTV” on which she posts educational videos about Champagne wine appreciation, video blogs and highlights from Champagne events. As at 2 November 2014, there were 72 subscribers to the Champagne Jayne channel and there had been more than 25,000 views of the videos posted thereon. Ms Powell has also published similar material on her Vimeo channel.

(d)    Instagram

139    Instagram is an online social network on which photographs and videos can be uploaded to an account page via the Instagram mobile app, using a range of filter effects and accompanied by captions, and shared by the creator via multiple other platforms including Twitter and Facebook. Hashtags can be incorporated within a post in order to make that post easily searchable and visible on the Instagram page for that particular hashtag. Instagram profiles include a biography of the creator (the “Instagrammer”) and are viewable either by the public or, if the account is set to private, by the account followers only. Users can choose to “follow” or subscribe to particular Instagram accounts. When this occurs, the photos or videos posted by the person followed will automatically appear in the follower’s homepage feed (unless the page followed has been made private in which case the creator must first approve the “follower request”). The number of followers of an Instagram page is displayed at the top of that page. Anyone can “like” or comment on a public post, which then becomes visible to other visitors to the profile page on which the post appears.

140    In March 2013, Ms Powell created an Instagram account under the username “champagnejayne”. As at 2 November 2014, there were approximately 130 followers of the Champagne Jayne Instagram account. Ms Powell said that by August 2014 she had posted nearly 1000 images, the majority of which referred to Champagne wines and approximately 20 of which concerned sparkling wine.

(e)    Vine

141    Vine is a website on which users can watch, create and share “looping” (that is, constantly repeating) video clips of up to six seconds in length. The videos are recorded or uploaded using the Vine phone device app. Captions, including hashtags, can be posted with the video to ensure broader exposure. Users can create their own public or private profile page, follow other users (known as “favouriting”) so that the other users’ videos appear in their home feed, “like” and comment on videos posted, and share videos (known as a “revine”) to their own followers or other social networks. Each video will also display any comments, “likes”, the number of “revines” and the number of times the video has been viewed. Channels can also be created in a manner similar to that available on YouTube.

142    Ms Powell created a Vine account in January 2013 under the name Champagne Jayne. As at 2 November 2014, there were approximately 86 followers of the Champagne Jayne Vine. Between January 2013 and March 2014, Ms Powell posted approximately 87 videos to her Vine account.

How has Ms Powell promoted herself?

143    In order to place Ms Powell’s conduct in context, it is appropriate to set out further details as to how Ms Powell has presented the Champagne Jayne business to the public. Extracts from Ms Powell’s email sign-off, the Website, the Twitter Account, the Facebook Page, the YouTube Website, the Instagram Account and the Vine Account show how Ms Powell has presented the Champagne Jayne business. It is well apparent that Ms Powell and the Champagne Jayne business have been consistently introduced under and by reference to the name Champagne. Generally, Ms Powell and the Champagne Jayne business have been promoted in a way that emphasises “Frenchness” and more generally all of the advantageous accoutrements that are associated with the name Champagne.

144    The CIVC has contended that Ms Powell has intentionally adopted trade indicia which call upon and use the goodwill associated with the name Champagne. The CIVC has also contended that Ms Powell has in an informal sense traded off the favourable reputation associated with the name Champagne. I agree. But it should be stressed, as I have said at the outset, that this is not a passing off case. The principal question is whether her conduct has misled or deceived or been likely to have misled or deceived Australian consumers or a class thereof. One can appreciate the perspective of the CIVC and what it perceives to be behaviour on the part of Ms Powell arrogating to herself some of the benefits of the goodwill created by a highly professional, dedicated and skilled industry of the Champagne region. That industry has produced a product that consumers have enjoyed the world over from a region that has shown great resilience not only in terms of growing conditions but also under waves of human tragedy associated with its geographical location. But none of that is the real issue. The important question for present purposes is how Ms Powell has conducted and represented herself to Australian consumers or a class thereof and used the persona of her alter ego.

145    The forms of social media used by Ms Powell have been presented to the public as emanating from Champagne Jayne. Further, the various introductions to Ms Powell’s Facebook Page, Twitter Account and Instagram Account all give prominence to and emphasise Champagne. Persons who access such pages in all likelihood would expect content relating to Champagne. Moreover, for those persons who have greater familiarity with Ms Powell’s activities and services, those expectations would be stronger and more reinforced as compared with those who had no such familiarity. It should be noted that Ms Powell’s social media postings could be viewed on the internet by any member of the Australian public.

Email signature

146    Ms Powell has used the following email signature:

Jayne Powell

Editor, www.champagnejayne.com

e: cj@champagnejayne.com

w: www.champagnejayne.com

t: www.twitter.com/champagnejayne

s: Champagne Jayne Powell

Harpers 2012 Champagne Educator of the Year

Gourmand 2011 Author Best French Wine Book (Aus)

Dame Chevalier de L’Ordre des Coteaux de Champagne

Website

147    Ms Powell has presented herself to the public in the following way on the Website:

Broadcaster/Presenter/Educator/Entertainer/MC

Your Chance To Book One of Champagne’s Greatest Independent Ambassadors

Known throughout the global wine industry simply as “Champagne Jayne”, award winning champagne journalist, educator, market builder and Champagne Dame Jayne Powell is a respected international media commentator, independent reviewer and expert in champagne.

…

About the author

I fell in love with Champagne on my first student visit to France aged 15 after watching way too many Bond movies. I’m passionate about showing people just how much fun they can have connecting with Champagne and ensuring this iconic symbol of luxury is accessible to all. I don’t promote houses or brands. I promote knowledge and enjoyment which enables people to uncork more business and pleasure in life. I hope to share a scintillating sensory journey with you soon.

Cheers!

Champagne Jayne

148    The bold text “Your Chance To Book One of Champagne’s Greatest Independent Ambassadors” on the Website has been replaced (at a time unknown) with the text “Multi-Award Winner Champagne Jayne enriches your champagne experience”.

149    The embedded video commences with Ms Powell speaking in French (saying “Hello and welcome to the website champagnejayne.com.”). In the video, Ms Powell speaks exclusively about Champagne wines (there is no mention of sparkling wines) and the video contains introductions to Ms Powell by members of well-known Champagne families (Taittinger and Krug). During the video, Ms Powell refers to her book which relates to Champagne wines. Ms Powell also refers to herself as “… the proud owner of an Ordre des Coteaux de Champagne medal – so I’m officially a Champagne Dame”.

150    In other parts of the Website, Ms Powell has presented herself as:

(a)    “Australia’s Champagne Day Ambassador”;

(b)    “… a global ambassador for Champagne …”;

(c)    “… renowned independent champagne evangelist Dame Chevalier Jayne Powell (aka Champagne Jayne) …”;

(d)    “Dame Chevalier Jayne Powell”;

(e)    “… real life Champagne Dame …”; and

(f)    “… Champagne Dame (Dame Chevalier) Jayne Powell …”.

On at least one occasion, Ms Powell has also published content on the Website which incorporates the logo of the CIVC, which suggests to readers that Ms Powell has an association with the CIVC.

151    Ms Powell has also permitted herself to be described in similar terms in publications by third parties. For example, the profile of Ms Powell published on the website of Saxton (an agency for public speakers that represents Ms Powell) describes her in the following terms:

… acknowledged “go to” expert in champagne, Jayne’s palette remains a “free agent”, unrestricted by any brand allegiance. A fluent speaker in French, Jayne is also considered a friend to family members of many champagne houses in France and a great ambassador for champagne internationally.

Twitter Account

152    The Twitter Account has the following brief introduction (which is able to be viewed at twitter.com/champagnejayne):

Facebook Page

153    The Facebook Page has the following brief introduction (which is able to be viewed at https://www.facebook.com/pages/CHAMPAGNEJAYNE/170537879380):

Dedicated to increasing your understanding and enjoyment of champagne - find out more at www.champagnejayne.com or follow @champagnejayne

Description

…

BY CHAMPAGNE JAYNE

- 2012 Champagne Educator of the Year (Harpers)

- 2011 Author Best French Wine Book (Gourmand)

- Honoured as a real ‘Champagne Dame’ (Dame Chevalier de L’Ordre des Coteaux de Champagne)

YouTube Website

154    The homepage of the YouTube Website also features the video referred to in [147] to [149] alongside the following text (which can be viewed at “www.youtube.com / user / CHAMPAGNEJAYNETV”):

Who is Champagne Jayne

728 views 1 year ago

Known throughout the global wine industry simply as “Champagne Jayne”, awardwinning champagne journalist, educator and market builder Jayne Powell is a respected international media commentator, independent reviewer and expert in champagne.

Dubbed “The Champagne Socialist” by Financial Times and knighted as a Dame Chevalier by the L’Ordre des Coteaux de Champagne, Jayne is an in demand corporate speaker, who hosts engaging champagne experiences for clients around the world. Learn more at www.champagnejayne.com.

155    Ms Powell has also posted a series of videos on the YouTube Website which profile Champagne houses. The examples relating to Taittinger, Pol Roger and Bollinger were played by Ms Powell’s counsel. The example relating to the winemaker of Arras, Ed Carr, was played by the CIVC’s counsel. Ms Powell agreed in cross-examination that these videos were from the same series of segments. The title page from these videos prominently displays the name CHAMPAGNE JAYNE and is presented in a very similar format, irrespective of whether the video relates to Champagne wines or Arras. Screen shots of the title pages of the videos relating to Taittinger, Pol Roger and Arras are set out below.

As can be seen from these screen shots, in each case, the word Champagne is emphasised. The description “Meet the Makers” is used in respect of both Champagne wines and non-Champagne wines, albeit with the addition of the word Champagne again in the case of Taittinger.

Instagram Account

156    The Instagram Account has the following brief introduction (which is able to be viewed at http://instagram.com/champagnejayne):

champagnejayne

Jayne Powell The people’s #champagne champion | award winning journalist & champagne educator | fun event MC. Lover of fine fizz, food, travel & lots of chocolate!

http://wwwchampagnejayne.com

Vine Account

157    The Vine Account has the following brief introduction (which is able to be viewed at https://vine.co/u/907118333160202240):

Champagne Jayne

Award-winning journo, educator & market-builder. Dubbed The Champagne Socialist by Financial Times, 2012 Champagne Educator of the Yr & real ‘Champagne Dame’ MC worldwide

General

158    It may be accepted, as contended by Ms Powell’s counsel, that Ms Powell has consistently used “Champagne Jayne” as her alter ego. For example:

(a)    From the inception of her business she has used “Champagne Jayne” in her corporate brochures advertising her wine education and entertainment events consultancy;

(b)    She has used “Champagne Jayne” on her name badge for events and when touring Champagne, France between 2005 and 2009;

(c)    She has described herself as “Champagne Jayne” in her newsletter “The WineLover”;

(d)    She wrote the 2011 book “Champagnes, Behind the Bubbles” in which the book’s author was “Champagne Jayne”;

(e)    The menu provided to Vue de Monde guests attending the 16 March 2012 Champagne tasting and food matching event introduces “Champagne Jayne”, namely, Jayne Powell as the host of the occasion;

(f)    In the 12 September 2014 “Who is Champagne Jayne” page of her website, Ms Powell states: “Known throughout the global wine industry simply as “Champagne Jayne”, Champagne Educator of the Year 2012 and Gourmand Best French Wine Book 2011 (Australia) winning author Jayne Powell, was aptly christened this moniker by friends and colleagues early in her professional life”;

(g)    It is apparent from the following display that the Twitter handle @champagnejayne is intended to mean Jayne Powell:

159    Further, there is evidence showing that some people have understood that “Champagne Jayne” has meant “Jayne Powell”:

(a)    In January 2008 she was introduced on Channel Nine’s “A Current Affair” as an “independent wine buff who goes by the name Champagne Jayne”;

(b)    When Ms Powell won 2012 Harpers Champagne Educator of the Year, Harpers listed the three finalists by name, save that Ms Powell was described as “Jayne Powell (aka Champagne Jayne)”, and as “Champagne Jayne” when announced the winner;

(c)    An article authored by Gemma McKenna in Harpers Wine & Spirit dated 9 March 2012 about a panel discussion at the 2012 Harpers Champagne Summit described Ms Powell’s alter ego in the following terms.

160    Generally, it has been said on Ms Powell’s behalf that Ms Powell has used Champagne Jayne to promote herself. As she has said: “[t]he Champagne Jayne business is really an extension of my life. It involves me organising and attending events (as myself)”.

161    It is said that so much is also clear from answers she gave in evidence concerning biographical information published by her in 2013 (referring to a 2003 publication):

HIS HONOUR: If you go under the heading Experience — just drop down that page — you’ve got “WineWorks International June 2003” and it says “product development”. What product development were you referring to there?---Like that — the guide that we were looking at yesterday. So the — the — the tasting note guide, the one that was comprehensive, the notes for — for events. Obviously building my online presence, my website, my social media profile.

Well, go up to the next one, which is “publisher and presenter”, which is more current. There’s a reference there to “online product development”. What’s that?-­-Well, I think of that as my website.

It says “product development”, though. So what product are you developing?--­Me.

Sorry?---Me.

You?---My — my brand. I — I work by myself and I have - - -

You’re not a product, though, are you? I thought that you’re a presenter and educator. Or are you describing yourself as a product?---I think that’s what I had in mind at the time, your Honour. [emphasis added]

162    I must say that I found this evidence curious, but it is unnecessary to elaborate. On the whole I found Ms Powell to be a credible witness.

163    One can accept these alter ego contentions, but the fact that the name has become her persona and her identity merged with her alter ego only reinforces the significance of the context under which she has referred to and promoted sparkling wines and the power of the imagery and message conveyed by that persona and that identity.

relationship with arras

164    Since Ms Powell formally established the Champagne Jayne business in 2009, she has promoted Arras sparkling wines. Arras sparkling wines are produced in Tasmania by Accolade Wines Australia Ltd (Accolade). Interestingly, Arras is also the name of a town in north-eastern France. Since she established the Champagne Jayne business, Ms Powell has:

(a)    referred to Arras in more than 30 social media postings (Twitter, Facebook and Instagram);

(b)    published more than 10 articles on the Website featuring Arras; and

(c)    published several videos on the YouTube Website featuring Arras.

165    The CIVC has referred to the following instances of Ms Powell’s promotion of Arras:

(a)    the Tweet marked T29, which was tweeted by Ms Powell from the Twitter Account on 25 October 2012;

(b)    the Tweet marked T47, which was tweeted by Ms Powell from the Twitter Account on 19 October 2010;

(c)    the Tweet marked T58, which was tweeted by Ms Powell from the Twitter Account on 12 July 2012;

(d)    the Tweet marked T59, which was tweeted by Ms Powell from the Twitter Account on 14 July 2012;

(e)    the Tweet marked T74, which was tweeted by Ms Powell from the Twitter Account on 13 February 2013;

(f)    the Tweet marked T81, which was tweeted by Ms Powell from the Twitter Account on 4 April 2013;

(g)    the YouTube Website video marked Y2, which was uploaded by Ms Powell to the YouTube Website on 16 October 2010;

(h)    the YouTube Website video marked Y3, which was uploaded by Ms Powell to the YouTube Website on 20 October 2010;

(i)    the YouTube Website video marked Y4, which was uploaded by Ms Powell to the YouTube Website on 23 October 2010;

(j)    the YouTube Website video marked Y11, which was uploaded by Ms Powell to the YouTube Website on 20 November 2011; and

(k)    the YouTube Website video marked Y14, which was uploaded by Ms Powell to the YouTube Website on 10 February 2013.

The Tweets are the following.

T29

T47

T58

T59

T74

T81

166    There is little doubt that for some time, Ms Powell has had a close association with the producer of Arras sparkling wines and has referred to and promoted such products under and whilst at the same time using her name and persona Champagne Jayne. It would also seem that she has done so in a fashion beyond merely being an independent reviewer and critic. For example:

(a)    First, although some of the material published by Ms Powell relating to Arras may be seen as critically reviewing Arras, a substantial amount of the material is explicit promotion of Arras. The Tweets referred to in [165] above so demonstrate. They are promotional and contain no element of criticism or review. Their evident purpose is to give publicity to Arras. The promotional nature of Ms Powell’s references to Arras is also illustrated by the YouTube Website videos referred to in [165] above. The videos are in the nature of “infomercials” featuring the winemaker of Arras (Ed Carr) and facilitated by Ms Powell. One of the videos disclosed Ms Powell endorsing Arras in a promotional manner. Other videos have featured Ms Powell visiting bottle shops and commenting on some of the wines for sale there, including Arras. One video depicts Ms Powell strongly promoting Arras, noting the price and indicating where it is available for sale.

(b)    Second, in evidence were various emails exchanged between her and officers of Accolade in relation to Ms Powell’s promotion of Arras wines and showing the closeness of the relationship. The picture which emerges is that Ms Powell has worked closely with Accolade to promote its wines. One example of the language used by Ms Powell which illustrates this is her reference in an email of 13 February 2013 to Accolade to her interest in the “… 2013 plans and social media activation for your [Accolade’s] sparkling brands”.

(c)    Further, there was an email dated 27 February 2013 in which Ms Powell suggested to Accolade that she would be “Delighted to ambassador your wines at Fab Ladies”. When asked about this in cross-examination, Ms Powell explained that she used this language because she considered the Arras wines to be “great wines”. Ms Powell was re-examined about this language. Ms Powell’s own characterisation of her conduct was that she acted “to advocate” for the Arras wines. But it was not the role of an independent reviewer and critic to “advocate” for a wine. “Advocating” for a product was work in the nature of public relations, promotion, marketing and advertising. Another email of 28 February 2013 from Ms Powell to Accolade expressed itself in language that showed a close association e.g. “perfect positioning for your brand”.

(d)    I queried Ms Powell directly about her promotion of Arras wines. The following exchange took place:

Do you agree that you’re acting as a promoter for Arras?---On that wine, yes, in the sense that I speak favourably about wines I like.

HIS HONOUR: You’re not, though. You’re actually getting the physical product into this event and giving it top billing. You’re not just turning up to a seminar talking about Australian sparkling wine brands. You’re doing more than that by actually organising the physical product and then giving it top billing. Or is that a wrong interpretation of these emails?---Well, “top of the bill” means first out of the — out of the box, so to speak. As I said before, I always show — if I show a sparkling wine, I show it first, and then I show the champagnes.

Well, I thought that you were saying, “Well, I do that, because I want people to then compare with the champagne, and that’s educative.” But the other way to read this is that you’re putting the Australian sparkling wine as top of the bill because it’s the one that you’re promoting?---No, your Honour, that’s not the case.

Viewed against her conduct in relation to Arras, Ms Powell’s denial that she was promoting those wines in the manner suggested was not entirely convincing.

Applicable legal principles: ACL

167    Section 18(1) provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

168    Sections 29(1)(g) and 29(1)(h) provide:

A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

…

(g)    make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

(h)    make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation.

…

169    It is appropriate to state a number of non-contentious principles applicable to the present case.

170    First, there is no meaningful difference between the words and phrases “misleading or deceptive”, “mislead or deceive” or “false or misleading”; see Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [14] per Gordon J and Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited (2014) 317 ALR 73 at [40] per Allsop CJ.

171    Second, where the issue is the effect of conduct on a class of persons such as consumers (rather than identified individuals to whom a particular misrepresentation has been made or particular conduct directed), the effect of the conduct or representations upon ordinary or reasonable members of that class must be considered (Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [102] and [103]). This hypothetical construct avoids using the very ignorant or the very knowledgeable to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful. Further, the objective characteristics that one attributes to ordinary or reasonable members of the relevant class may differ depending on the medium for communication being considered. There is scope for diversity of response both within the same medium and across different media.

172    Fourth, for the purposes of s 18, one must identify the relevant conduct and then consider whether that conduct, considered as a whole and in context, is misleading or deceptive or likely to mislead or deceive. Such conduct is not to be pigeon-holed into the framework or language of representation (cf the language of s 29).

173    Fifth, conduct is misleading or deceptive or likely to mislead or deceive if it has the tendency to lead into error (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39] per French CJ, Crennan, Bell and Keane JJ). But conduct causing confusion or wonderment is not necessarily co-extensive with misleading or deceptive conduct (Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 at [8] per French CJ, Crennan and Kiefel JJ).

174    Sixth, the question is whether there was a real but not remote chance or possibility that the relevant conduct was misleading or deceptive or likely to mislead or deceive. To assess this one looks at the potential practical consequences and effect of the conduct.

175    Seventh, for the purposes of s 18, the words “likely to mislead or deceive” demonstrate that it is not necessary to show actual deception. Relatedly, it is not necessary to adduce evidence from persons to show that they were actually misled or deceived.

176    Eighth, there must be a sufficient nexus between the impugned conduct or apprehended conduct and the consumer’s misconception or deception. As was said in SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1 at [51] by French, Heerey and Lindgren JJ:

The characterisation of conduct as “misleading or deceptive or likely to mislead or deceive” involves a judgment of a notional cause and effect relationship between the conduct and the putative consumer’s state of mind. Implicit in that judgment is a selection process which can reject some causal connections, which, although theoretically open, are too tenuous or impose responsibility otherwise than in accordance with the policy of the legislation.

177    Subject to one qualification, the error or misconception must result from the respondent’s conduct and not from other circumstances for which the respondent was not responsible. But conduct that exploits or feeds into and thereby reinforces the pre-existing mistaken views of members of the relevant class may be misleading or deceptive or likely to mislead or deceive. I would reject Ms Powell’s contention that conduct that perpetuates pre-existing mistaken views about the name Champagne cannot under any circumstances amount to a contravention of s 18.

178    Ninth, conduct that is merely transitory or ephemeral where any likely misleading impression is likely to be readily or quickly dispelled or corrected does not constitute conduct that would infringe s 18 (Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 at [58] per French, Tamberlin and Rares JJ).

179    So, for example, potentially misleading conduct at the start of a celebratory event or charity function referring to or promoting a product, where the erroneous impression that may have been caused is readily dispelled by the end of the function, would not contravene s 18. It is for this reason that I have not considered the CIVC’s case concerning Ms Powell’s conduct at various social functions to have been made out, although it would have been more desirable for her to have been clearer as to the true character of the sparkling wines that she was presenting or promoting at such events.

180    But there is another dimension to this aspect relevant to the present case concerning Ms Powell’s use of social media. At one level, it may be said that much of the social media that I have described earlier and Ms Powell’s use thereof has been transitory and fleeting. Take for example Twitter. Tweeting is fleeting. Further, the ripple effects of such a mode are unclear. It may be said of such media that it is transitory and ephemeral. But there are three aspects that support a characterisation of such social media and its intercourse as being more enduring. First, a Tweet may be fleeting, but its effect or influence on a reader may be more enduring as I explain later. Second, although particular communications may be fleeting in real time, nevertheless, there is usually a more permanent record of the communications contained and preserved within the type of mode used or elsewhere for anyone to access at a later stage. Third, although the communications may be fleeting in real time, nevertheless the repetition over an extended time frame of similar types of communications may demonstrate a pattern of more enduring and potentially infringing conduct. Such a more enduring pattern may establish a contravention of s 18 even though any one individual communication on a Twitter feed flitting in and out of cyberspace may be more ephemeral.

181    Tenth, and relatedly, it is one thing to say that the conduct must be more than transitory or ephemeral, but it is another thing to say that the conduct or its effect must endure up to some “point of sale”. There is no such requirement to establish a s 18 contravention.

182    Eleventh, in determining whether a contravention of s 18 of the ACL has occurred, the focus of the inquiry is on whether a not insignificant number within the class have been misled or deceived or are likely to have been misled or deceived by the respondent’s conduct. There has been some debate about the meaning of “a not insignificant number”. The Campomar formulation looks at the issue in a normative sense. The reactions of the hypothetical individual within the class are considered. The hypothetical individual is a reasonable or ordinary member of the class. Does satisfying the Campomar formulation satisfy the “not insignificant number” requirement?

183    I am inclined to the view that if, applying the Campomar test, reasonable members of the class would be likely to be misled, then such a finding carries with it that a significant proportion of the class would be likely to be misled. But if I am wrong and that a finding of a “not insignificant number” of members of the class being likely to be misled is an additional requirement that needs to be satisfied, then I would make that finding in the present case. For a discussion of these issues, see Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 at [206] to [210] per Greenwood J and National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 61 IPR 420 at [70] and [71] per Jacobson and Bennett JJ.

184    Finally, Ms Powell has contended that in the case of a descriptive or generic word, for an applicant to make good an allegation of affiliation it must establish that the word has acquired a secondary meaning and become distinctive of the applicant’s business. Whether a secondary meaning exists is a question of fact to be determined having regard to all the relevant contextual circumstances. It is also said that it may be difficult to establish that a descriptive name, as opposed to a concocted or invented name, has become distinctive of the applicant’s business. Further, it is said that whilst a name may at the same time be both descriptive and distinctive, the fact that a name prima facie retains its descriptive signification may increase the difficulty of proving that it is distinctive of the applicant’s business. As will become apparent, I have rejected the CIVC’s general affiliation case on the facts. Accordingly, it is unnecessary to elaborate further on the jurisprudence concerning the “rival traders” scenario in the context of s 18. The question that I have to consider more generally is how the name Champagne was or may have been understood by consumers or the relevant class thereof.

What is the relevant class?

185    Ms Powell contends that the CIVC has failed to identify the relevant members of the public in Australia to whom Ms Powell’s conduct is said to apply.

186    Further, Ms Powell contends that in any event her online activities are international. Ms Powell’s “Case Study 1” gave examples of followers in Dubai, UK, France, Italy, USA and Japan.

187    I accept that Ms Powell’s social media activities have an international dimension although I am not sure what her examples demonstrate. They certainly do not demonstrate that Ms Powell’s online activities were not substantially Australian based, whether in relation to Twitter or any other social media mode. Her digital reach and exposure was predominantly to an Australian audience and to actual and potential Australian consumers of Champagne wines and sparkling wines.

188    In my view, the relevant class of consumers would likely include those members of the public in Australia exposed to Ms Powell’s conduct as “Champagne Jayne” who were prospective purchasers of Champagne wines and sparkling wines. This would include members of the public reading Ms Powell’s social media content and viewing her website.

189    Ms Powell has contended that the CIVC has not proved exposure to such a class. It is also said that no attempt has been made by the CIVC to show that:

(a)    a “follower” on social media platforms such as Twitter and Instagram reads Tweets of those followed;

(b)    a person reads content on the profile of a person with whom he or she is a “Facebook friend”;

(c)    those who visit a website read the impugned content.

190    In my view there is an air of unreality to such a submission. One can assume from the mode of communication that it was intended to be read and was read by a significant number of such a class.

191    Ms Powell considered social media to be fundamental to her business. The following evidence so concedes:

Social media looks to be a very important part of your business. You would agree with that, wouldn’t you?---Social media allows small businesses to put out messages into the market.

Yes. Well, it looks like you use the vast majority of the social media available. Would you agree with that?---I would say that I use blogging and YouTube for business. I have a Vine and an Instagram account as well, but they’re not tools that I market. They’re more, kind of, idiosyncratic.

But you use your web page as well for your business. That’s an important part of your business?---My website is my online brochure, yes.

Yes. And no doubt you intend to expand your use of social media in your business. It’s an important part of your business, isn’t it?---It’s how I communicate with the world.

192    Ms Powell used and deployed social media in trade or commerce and it was an integral aspect of her business activities.

193    It is also said that the CIVC has failed to show who were the prospective purchasers in the relevant class and what they were buying. It may be accepted that Ms Powell is not part of the supply chain. She provides services including wine education, promotion of wines, event management and consulting focused on wines. But it would seem to me to be appropriate to infer that the class to which her social media was directed included the consumers that I have referred to and accordingly a significant number of actual and potential purchasers.

194    On behalf of Ms Powell, other contentions were advanced by her counsel. It was said that a person scrolling through his or her Twitter feed, for example, might just want to stay up to date with “what’s happening in the world” or to have a conversation with someone rather than be such an actual or potential consumer. That may be so, but it does not seem to me that this was intended by Ms Powell to be or in fact was her primary audience. Further, it was said that in the absence of evidence about, say, the search terms deployed by users in search engines to arrive at Ms Powell’s YouTube channel, one could only speculate about why people have viewed Ms Powell’s videos. They might want to hire her services to host an event. They might want to buy her book. They might have had prior knowledge of a brand such as House of Arras or Taittinger and landed upon the site after searching for “Arras” or “Taittinger”. It is said that one does not know which of these users could be described as prospective purchasers, and what the relevant purchasing occasion was meant to be. All such possibilities are not to be denied. But again I do not consider that these possibilities detract from the force of the primary conclusion as to the relevant audience and class to which her conduct was directed.

195    Further, it was said that the attributes of ordinary or reasonable members of the class would differ depending on context and occasion. I would agree, but I am inclined to the view that such differences would not impact upon the ultimate conclusions that I have reached as described later.

196    Further, Ms Powell has asserted that it should be assumed that the social media audience has a high level of wine knowledge. She has pointed to examples of Ms Powell’s Twitter followers that appear to be wine enthusiasts. She also referred to some of the audience as being “wine lovers”. But such a phrase only speaks to an enjoyment of wines rather than knowledge, although in some cases one may flow from the other. Indeed, Ms Powell conceded in cross-examination that there was a difference between a wine lover and a person who knew a lot about wines.

197    But in any event, there were examples of persons who did not appear to be wine buffs, but rather persons of general interest who accessed her social media.

198    More generally, it may be inferred that there would be many opportunities for a wine novice to view Ms Powell’s social media and Website, including those who knew little about wine generally but liked sparkling wine. Moreover, as Ms Powell conceded, she would not know a significant number of her Twitter followers at all. Further, some of her known Twitter followers could be expected to retweet her Tweets to countless and unknown other Twitter users.

199    In summary, it cannot be assumed that those who accessed Ms Powell’s social media knew of the difference between Champagne wines and sparkling wines. Indeed, I infer that a significant number of persons who accessed her social media may have had no such knowledge or imperfect knowledge in that respect. Moreover, many of them are likely to have been actual and potential consumers and purchasers of Champagne wines and sparkling wines.

represented affiliation and ambassadorship

200    The CIVC submits that by reason of Ms Powell’s use of the name Champagne Jayne and other conduct, she has represented that she and her services had the sponsorship of or an affiliation with the Champagne sector, being the sector represented by the CIVC. I do not accept the CIVC’s case on this aspect except for one matter dealing with Ms Powell’s use of the title “ambassador”.

201    The CIVC has emphasised representations conveyed by Ms Powell arising from her use of titles such as “Global Champagne Ambassador”. In this context, it is said that the word “ambassador” has the connotation of an appointed or official messenger or representative (see Shorter Oxford English Dictionary (6th ed, 2007, Oxford University Press) and the Macquarie Dictionary (6th ed, 2013)).

202    Contrastingly, Ms Powell sought to downplay her use of the title “ambassador” as meaning that she was a “vocal enthusiast” in relation to Champagne wines. However, under cross-examination, Ms Powell accepted that this was not what the title “ambassador” conveyed. She also said:

… but you accept now, don’t you, that you in your business don’t have the sponsorship or approval of the CIVC, do you?---I never thought that I — I did. I — I realise that “ambassador” was obviously the wrong word to use. I did that quite innocently.

203    Ms Powell maintained that she had removed all references to the word “ambassador” from the Website. However, it became apparent that references to Ms Powell as a Champagne “ambassador” remained on the Website. Ms Powell gave the following evidence:

And I thought you were saying to his Honour yesterday that, once you became aware of that complaint by the CIVC, you took steps to remove all references to you being an ambassador for champagne, or similar language, from your website and other social media?---Yes, I did.

Yes. Well, we have many examples of you continuing to use the word “ambassador” on your website, in various parts of the website, from, let’s say, February 2014?---Right.

…

So, what you’ve done is, if somebody has drawn to your attention it’s on a specific part of the website, you’ve taken it from there?---I’ve taken it from every page that has been identified and looked through my main pages.

But you haven’t got somebody — your lawyer or an IT expert — to sweep your site and make sure that word doesn’t appear any more?---No. I haven’t swept my site. I hadn’t — it hadn’t occurred to me.

After the conclusion of Ms Powell’s cross-examination, she agreed that there were twelve references to the word “ambassador” still on the Website although it appears that those references were being or intended by her to be removed.

204    The CIVC gave other examples suggesting an official affiliation including Ms Powell’s use of titles such as “Champagne Dame” and “Dame Chevalier”. In this context, the words “dame” and “chevalier” (the French word for “knight”) conveyed the meaning that Ms Powell held some official rank or title; see Shorter Oxford English Dictionary (6th ed, 2007, Oxford University Press) and the Macquarie Dictionary (6th ed, 2013). The French State uses the title “Chevalier” as part of various honorary titles such as “Chevalier de la Légion D’Honneur” (“Knight of the Legion of Honour”). Ms Powell is not a Chevalier in that sense. The CIVC said that such meanings conveying an official rank or title were reinforced by Ms Powell’s use of phrases such as “knighted as a Dame Chevalier of the [OCC]” and her reference to the “Dame Chevalier” title used by the OCC as an “honour”; on her Facebook Page she said that she had been: “Honoured as a real ‘Champagne Dame’ (Dame Chevalier de L’Ordre des Coteaux de Champagne)”.

205    Ms Powell has no formal relationship with the Champagne sector and does not have its sponsorship or approval or any affiliation with it other than her connection with the OCC. The services provided by Ms Powell do not have the sponsorship or approval of the Champagne sector.

206    Ms Powell in her defence has principally relied upon her connection with the OCC and the use of the title “Dame Chevalier”, which is used by members of that organisation. But the OCC is not operated by the French State. It is a promotional organisation operated by some businesses involved in the Champagne sector. It has no formal relationship with, and is not affiliated with, or authorised to act on behalf of, the CIVC. The CIVC does provide some funding to the OCC on the basis that the OCC assists in the CIVC’s objective of promoting Champagne. Consequently, the CIVC’s logo appears on the website of the OCC. But the assertion on the OCC’s website that it is “responsible for implementing the global communications policy” of the CIVC is inaccurate. The promotional work done by the OCC is one element of the promotional work carried out or supported by the CIVC. Further, the statement is a mistranslation from the French original. The incorrectly translated phrase has been corrected to refer to the OCC “spreading the message” of the CIVC. Further, the titles conferred by the OCC on its members (such as Dame Chevalier) are akin to titles such as “life member” used by private clubs. They have no official status in France. They are merely part of the promotional activities of the OCC. Moreover, membership of the OCC is not confined to wine professionals and wine experts. Membership includes people involved in politics, media, the arts and sport. Mere membership of the OCC does not carry with it any authority on behalf of the Champagne sector at large. The members of the OCC are merely members of a private club associated with the promotion of Champagne wines.

207    Ms Powell has also relied on various interviews that she conducted and videos recorded with representatives of Champagne houses. On the first day of the trial, videos involving Taittinger, Pol Roger and Bollinger were played by Ms Powell’s counsel. But they offer no support for Ms Powell’s position. They involved the relevant Champagne houses taking up a business opportunity to promote their wines. Nothing in those videos suggested that Ms Powell had been appointed by, or authorised by, those Champagne houses as their representative. Moreover, Ms Powell expressly asserted that she was not connected with particular brands or Champagne houses.

208    Further, Ms Powell relied on a letter from a former winner of the Vin de Champagne Award (Christian Maier), but under cross-examination she accepted that he was not a representative of the CIVC. Similarly, Ms Powell relied on receiving a Harpers Champagne Summit Award, but she also accepted that this award had nothing to do with the CIVC or the Champagne sector at large.

209    Generally, none of the above matters provide any support for Ms Powell’s use of the title “ambassador”.

210    Ms Powell referred to three meanings given to “ambassador” in the 6th edition of the Macquarie Dictionary (2013): the first meaning concerns a diplomatic agent representing his country’s interests in another country; the second meaning is that contended for by the CIVC: “an authorised messenger or representative”; the third meaning is said to be closest to Ms Powell’s intended use (as a “vocal enthusiast”): “a person of some personal distinction as a sportsperson, actor, etc., who wins goodwill for his or her country in another”.

211    Ms Powell contended that the third meaning was what was conveyed and what in all likelihood would have been understood by members of the relevant class. Moreover, it is said that other people’s use of “ambassador” in the context of Ms Powell’s business activities suggests the third definition. It is said that they suggest that Ms Powell is a person who wins goodwill for Champagne. It is said that they also suggest, from the context, that she is “independent”, a “free agent” and “unrestricted by any brand allegiance”. For example:

(a)    “There is no doubt in my mind that Jayne Powell has the highest attribute and Champagne knowledge to not only be a worthy participant in the CIVC VIN de champagne award 2006 but to be, or more exactly already is, a Champagne ambassador to Australia” (emphasis added) – Christian Maier, in a 2006 reference he wrote for Ms Powell to help her obtain new opportunities in Champagne.

(b)    “… acknowledged ‘go to’ expert in champagne, Jayne’s palette remains a ‘free agent’, unrestricted by any brand allegiance. A fluent speaker in French, Jayne is also considered a friend to family members of many champagne houses in France and a great ambassador for champagne internationally.” – www.saxton.com.au (an agency for public speakers including Ms Powell).

(c)    “Considered a friend to family members of many champagne houses in France and a great ambassador for champagne internationally, Jayne Powell (known as Champagne Jayne) is a respected Australian independent reviewer, author and expert in champagne” – advertisement for Food and Wine Festival event involving Ms Powell.

212    But those ad hoc references do not detract from the force of the CIVC’s contention. In my opinion, Ms Powell by her conduct represented or could reasonably be understood to have represented that she had some official status or affiliation with the Champagne sector by reason of her claimed title “ambassador”. In my view, her use of that title in context conveyed the second meaning (see [210]) rather than the third meaning, although I accept that some of her audience might have understood the third meaning.

213    Further, her association with the OCC did not justify her use of “ambassador”. In that regard:

(a)    the OCC is not operated by the French State;

(b)    the OCC is a promotional organisation operated by some businesses involved in the Champagne sector;

(c)    the OCC is not authorised to act on behalf of the CIVC;

(d)    Ms Powell has no formal relationship with the Champagne sector; and

(e)    her Dame Chevalier title has no official status in France.

214    In summary, in my view, Ms Powell has inappropriately used the title “ambassador” and by that conduct has engaged in conduct that has been likely to mislead or deceive Australian consumers by suggesting that she had some formal affiliation or relationship with the Champagne sector that she did not have. But I do not otherwise consider that the CIVC has made out its more general affiliation case.

215    Ms Powell has indicated that she is prepared if necessary to give an undertaking in terms that “she will not use the word ‘ambassador’ to describe herself or her services with respect to ‘Champagne’ in future unless excused by the Court”. I am inclined to the view that an undertaking in an appropriate form should adequately dispose of this part of the case.

216    Finally, for completeness, the CIVC does not seek to prohibit Ms Powell from using her titles such as “Champagne Dame”, “Dame Chevalier” or “knighted as a Dame Chevalier of the [OCC]” and her statement that this is an “honour”.

consumers and their understanding OF “champagne”

217    In summary, and as I have set out earlier, generally speaking at the time of Ms Powell’s conduct, Australian consumers could be divided into the following categories:

(a)    Actual and potential consumers of either or both of Champagne wines and sparkling wines who would have understood or believed that the name Champagne could be applied to either (Category A);

(b)    Actual and potential consumers of either or both of Champagne wines and sparkling wines who would have understood the correct attribution and reference applying to the name Champagne (Category B);

(c)    Actual and potential consumers of either or both of Champagne wines and sparkling wines who would have been unclear one way or the other (Category C).

218    Ms Powell contends that the CIVC has not proved that the word Champagne, which she asserts has a generic or descriptive quality in Australia, has acquired a secondary meaning or independent reputation in the mind of the ordinary Australian consumer. It is said that the CIVC must prove that the word Champagne is distinctive (to the relevant class) of a region, a wine, a production method or a geographical indication; reference was made to the CIVC unsuccessfully seeking an interlocutory injunction to restrain an importer of Freixenet wine, produced in Spain, from promoting, advertising or selling it by the use of or under the name of “champagne” (amongst other things) (Comite Interprofessionnel du Vin de Champagne v NL Burton Pty Ltd (1981) 38 ALR 664; an interlocutory appeal from that decision was dismissed (unreported, 2 July 1982; Bowen CJ and McGregor and Ellicott JJ)). It is said that in secondary meaning cases, it may be difficult to establish that a descriptive name has become distinctive of a trader’s business.

219    Generally, it is said that the CIVC has not proved secondary meaning.

220    It is also said that there are particular types of evidence often adduced in secondary meaning cases to establish Australian consumer impressions, but that the CIVC has not adduced any such evidence. Examples of such evidence are survey evidence about consumer impressions, brand awareness evidence captured in the ordinary course of CIVC’s business, lay evidence from consumers in the relevant class and expert opinion evidence.

221    There are a number of responses to Ms Powell’s propositions.

222    First, true it is that the CIVC has not adduced specific evidence of what is described by Ms Powell as secondary meaning, but I am able to draw conclusions from the available material in the absence of such specific evidence. I have drawn the conclusion that consumers, generally speaking, can be divided into Categories A, B and C.

223    Second, there is a danger that the contentions put on behalf of Ms Powell of divisional concepts such as “generic”, “descriptive”, “distinctive” and “secondary” meanings distract from the real issue in the present context. Those labels are readily applied to “passing off” type cases between rival traders and have been used in those cases where such concepts have been transposed over to the s 18 scenario (or predecessor legislation). But the situation before me is different. It is accepted that I must consider how the name Champagne would or is likely to be understood by Australian consumers. It is also accepted that such a name may mean different things to different classes of Australian consumers depending upon their level of sophistication and consumption of such products. But it is altogether too simplistic to use the labels “generic”, “descriptive”, “distinctive” and “secondary” for present purposes. As I have said, in my view, consumers can be divided into Categories A, B and C.

224    Third, Ms Powell has also sought to distinguish different consumer reactions to the word Champagne as compared with consumer reactions to the phrase Champagne Jayne. As I have said earlier, I have rejected the CIVC’s case on affiliation generally except on one aspect dealing with the word “ambassador” where such distinctions may have had greater significance to that part of the case. But in the context of the present discussion, I do not see this distinction as taking Ms Powell far. In my view, a consumer being presented with the name Champagne Jayne is likely to conclude that the word Champagne in that name is being used in the way that consumer also understands the word Champagne, putting to one side for the moment how he or she understands the word Champagne (that is, whether they fit within Categories A, B or C). So, when Ms Powell uses her title Champagne Jayne to promote sparkling wines without making it clear that they are not Champagne wines, a consumer viewing such promotional activity may, depending upon his or her knowledge and sophistication, assume that what is being referred to are Champagne wines.

225    In summary, in my view Australian consumers can conveniently be divided for the purpose of the analysis into Categories A, B and C.

226    In the next section I propose to discuss the specific impugned conduct of Ms Powell in her use of social media and her references to and promotion of sparkling wines. To the extent that her conduct has conveyed or is likely to have conveyed that the sparkling wines she referred to are or may be Champagne wines or have some or all of their necessary characteristics, her conduct contravened s 18 to the extent that it was directed to or likely to be seen by consumers in Categories A and C. Category B can be put to one side.

227    For consumers in Category A, her conduct is likely to have reinforced and encouraged the perpetuation of the misconception of such consumers. True it is that the consumers in Category A may have held the prior misconception for other reasons, but in my view it amounted to a contravention of s 18 to further reinforce and perpetuate such a misconception.

228    For consumers in Category C, her conduct is likely to or may have resolved any confusion in their minds in the direction of treating or being likely to treat sparkling wines as Champagne wines.

229    I accept that the above propositions are stated at a level of generality. This is partly because there was no specific and detailed evidence on these points. Moreover, of the nature of things, detailed evidence on such matters is not likely to have been readily available. Further, the precise audience characteristics of Ms Powell’s social media communications were not readily available, although I infer that a significant percentage thereof were likely to have been Category A or Category C consumers.

CONDUCT IN RELATION TO sparkling WINES

230    Ms Powell’s conduct in relation to sparkling wines can be conveniently divided (as the CIVC has done) into four categories as follows:

(a)    the use of the name Champagne (by the use of Champagne Jayne) in connection with sparkling wines (Category 1);

(b)    the use of the name Champagne (by the use of Champagne Jayne) in connection with both sparkling wines and Champagne wines (Category 2);

(c)    the use of the name Champagne (by the use of Champagne Jayne) in connection with sparkling wines, but with some qualifying language (Category 3); and

(d)    the use of the name Champagne (by the use of Champagne Jayne) in connection with both sparkling wines and Champagne wines, but with some qualifying language (Category 4).

231    In respect of all of such categories of Ms Powell’s conduct, she has conveyed the following representations in respect of sparkling wines:

(a)    that the sparkling wines are or may be Champagne wines; and/or

(b)    that the sparkling wines have or may have some or all of the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne.

232    In relation to conduct falling into Categories 1 and 2, there is no qualifying language (such as “Australian” or “English”) to support an argument that the relevant wines are not Champagne wines. In that sense, the conduct falling into those categories conveys the representations identified above in a stronger and more unqualified manner.

233    In relation to conduct falling into Categories 3 and 4, there is some qualifying language (such as “Australian” or “English”) to support an argument that the relevant wines originate from places other than the Champagne region. But the presence of this qualifying language is likely to be insufficient, when viewed in context, to render nugatory the force of the representations identified above.

234    Before proceeding further, it is also worth restating Ms Powell’s concession in cross-examination that “… some people – especially in Australia – call everything champagne”. To such people, the use of words such as “Australian” or “Tasmanian” in Ms Powell’s communications does nothing to detract from the impression created by the use of the name Champagne in those communications. To such people, Ms Powell’s communications represent that Australian wines are Champagne wines.

Category 1

235    The following are examples of Ms Powell’s conduct falling into Category 1:

(a)    the Tweet marked T7, which was tweeted by Ms Powell from the Twitter Account on 20 June 2013;

(b)    the Instagram post marked I5, which was posted by Ms Powell from the Instagram Account on 9 August 2013; and

(c)    the Tweet marked T31, which was tweeted by Ms Powell from the Twitter Account on 13 December 2012.

These Tweets and this Instagram Post are as follows:

T7

I5

T31

236    The example Tweets and Instagram post referred to above refer to Nyetimber. The Tweets and Instagram post do not indicate that Nyetimber is not a Champagne wine. Further, T31 expressly uses the expression “champagne mates” in the body of the Tweet.

237    The Tweets and Instagram post convey that Nyetimber is or is likely to be a Champagne wine. Some members of the public may take this to mean that Nyetimber emanates from the Champagne region. Other members of the public may take this to mean that Nyetimber has the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne.

238    This is not the case. By publishing the Tweets and the Instagram post, Ms Powell has contravened s 18 of the ACL.

239    A number of other social media postings falling into this category were referred to during the cross-examination of Ms Powell. One example (Ex A.9) related to Arras. The relevant Tweet is reproduced below.

240    In relation to this Tweet, Ms Powell gave the following evidence:

…but there’s no photo with that one, is there?---No. There isn’t a photo with that one.

No. How would the reader know whether that was Champagne or not?---I suppose it depends who — who would actually — I mean, Twitter obviously goes very fast, so I don’t know how many people will have seen that particular tweet. I was at the Good Food and Wine Show. Ed Carr was hosting a master class. People who like sparkling wine — Ed Carr is the most awarded sparkling winemaker in Australia. It’s quite likely they would know his name and Arras as well.

Ms Powell did not meaningfully identify any way in which this Tweet identified Arras as a non-Champagne wine.

241    Another example (Ex A.10) related to Nyetimber. The relevant Tweet is reproduced below.

242    In relation to this Tweet, Ms Powell gave the following evidence:

Okay. Next one:

Breaking out the big bubble guns for New Year’s Eve 2012. Twitpic. Nyetimber ’96 Chardonnay reminds me of Krug. Seriously.

Nyetimber is an English sparkling wine, isn’t it?---That’s correct. That’s why I’ve said “bubble”, not Champagne.

I see?---“Big bubble guns”.

Yes. But we’ve already agreed that “bubbles” can mean either Champagne or sparkling wine, haven’t we?---We have agreed that. But I normally put the word “Champagne” in, I think, when it’s Champagne.

Right. So — and when it’s not Champagne, you don’t say — you don’t take care to say every time that it’s not Champagne, do you?---Well, I usually say “sparkling” or “bubbles”. So that could mean either.

Yes. Okay.

HIS HONOUR: But just for a person in a Melbourne, they may not necessarily know Nyetimber as to precisely where its origin is; do you accept that?---I do.

MR CRUTCHFIELD: And the - - -

HIS HONOUR: So a statement about a brand where people don’t know where its source location is coupled with the phrase “big bubble guns”, that’s not indicating one way or the other whether you’re talking about Champagne or not Champagne?---I — I agree with your Honour that it’s not as clear in — in that tweet as it is in others.

MR CRUTCHFIELD: And there’s no reference to a region, is there?---Excuse me. No. Not in that one.

This Tweet is likely to mislead some members of the public in Australia as to whether Nyetimber is or is likely to be a Champagne wine.

243    Another example (Ex A.13) related to sparkling wines from Limoux (which is in the south of France). The relevant Tweet is reproduced below:

244    In relation to this Tweet, Ms Powell conceded that Limoux is not well known to Australians and sought to suggest that this posting was not misleading because it did not positively assert that these wines are Champagne wines. She appeared to contend that because there was a reference to “bubbles” that people would infer that these were sparkling wines not Champagne wines. Ms Powell’s contention should not be accepted. A fair viewing of this Tweet is that it would represent to some Australians that these French wines were Champagne wines. Ms Powell’s counsel sought refuge in time zone differences and that there was no evidence that anyone in Australia saw it. There is an air of unreality to such a submission. I infer that Australian followers of Ms Powell’s Twitter feed had the opportunity to view this Tweet and to retweet it and that some of them may have viewed it.

Category 2

245    The following are examples of Ms Powell’s conduct falling into Category 2:

(a)    the Instagram post marked I3, which was posted by Ms Powell from the Instagram Account on 12 April 2013;

(b)    the Tweet marked T59, which was tweeted by Ms Powell from the Twitter Account on 14 July 2012;

(c)    the Tweet marked T79, which was tweeted by Ms Powell from the Twitter Account on 7 March 2013; and

(d)    the Tweet marked T81, which was tweeted by Ms Powell from the Twitter Account on 4 April 2013.

246    This Instagram post and these Tweets are as follows.

I3

T59

T79

T81

247    The Instagram post and Tweets refer to:

(a)    in the case of the Instagram post, Arras and various Champagne wines;

(b)    in the case of the Tweet marked T59, Arras and a Champagne wine;

(c)    in the case of the Tweet marked T79, Jansz and two Champagne wines; and

(d)    in the case of the Tweet marked T81, Arras, Rococo and two Champagne wines.

248    The Instagram post and Tweets do not indicate that Arras, Jansz and Rococo are not Champagne wines. Moreover, in Tweets 79 and 81, the word “Champagne” is expressly used in the body of the Tweets.

249    The Instagram post and the Tweets convey that Arras, Jansz and Rococo are or are likely to be Champagne wines. Again, some members of the public may take this to mean that these wines emanate from the Champagne region. Other members of the public may take this to mean that these wines have the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne. These impressions are reinforced by the presence of Champagne wines in the Instagram post and each of the Tweets.

250    By publishing the Tweets and the Instagram post, Ms Powell has contravened s 18 of the ACL.

251    Another example of this aspect of Ms Powell’s conduct is the Vine video marked V4, which was played by the CIVC in opening. The video marked V4 first briefly depicted a bottle of Elstree (a sparkling wine from New Zealand) and then moved to a bottle of Dom Perignon (a celebrated Champagne wine). The viewer was left with the image of the front label of that bottle. When presented through the Champagne Jayne Vine Account (and, consequently, under the name Champagne Jayne), this video created a strong impression that the wines depicted were or were likely to be Champagne wines. That impression was likely to be misleading in relation to the bottle of Elstree.

252    A number of other social media postings falling into this category were referred to during the cross-examination of Ms Powell. The same conclusions can be reached in respect of these other examples.

Category 3

253    The following are examples of Ms Powell’s conduct falling into Category 3:

(a)    the Instagram post marked I6, which was posted by Ms Powell from the Instagram Account on 12 April 2013;

(b)    the Tweet marked T47, which was tweeted by Ms Powell from the Twitter Account on 19 October 2010; and

(c)    the Tweet marked T49, which was tweeted by Ms Powell from the Twitter Account on 24 October 2010.

This Instagram post and these Tweets are as follows.

I6

T47

T49

254    The example Instagram post and Tweets referred to above refer to Arras. In the case of the Instagram post, Arras is referred to as the “krug of australia”. This is the only reference to Australia in the Instagram post. Krug is a well-known prestige Champagne wine and the reference to Krug itself wrongly conveys an association between Arras and Champagne wines.

255    The Instagram post conveys that Arras is or is likely to be a Champagne wine. Again, some members of the public may take this to mean that Arras emanates from the Champagne region. Other members of the public may take this to mean that Arras has the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne. These representations are conveyed by the setting in which Ms Powell publishes Instagram posts, which has a strong focus on Champagne. They are also reinforced by the reference to a well-known prestige Champagne wine, Krug. It is of lesser significance that this Instagram post contains a reference to Australia. Ms Powell has admitted that some members of the public in Australia consider that an Australian sparkling wine can properly be described as Champagne.

256    Arras is not a Champagne wine. It follows that by publishing the Instagram post, Ms Powell has contravened s 18 of the ACL.

257    In the case of the Tweet marked T47, it refers to the “new release #Arras”, accompanied by a picture of a bottle of Arras. The Tweet also contains the text “#tasmania”.

258    In the case of the Tweet marked T49, it states “house of #Arras is Oz’s premier sparkling pioneer”. It is accompanied by a picture of some glasses of sparkling wine with the caption “Australian Sparkling Wines 1: ticking the box”.

259    These Tweets convey that Arras is or is likely to be a Champagne wine. Again, some members of the public may take this to mean that Arras emanates from the Champagne region. Other members of the public may take this to mean that Arras has the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne.

260    By publishing these Tweets, Ms Powell has contravened s 18 of the ACL.

261    Another example of this aspect of Ms Powell’s conduct is the Vine video marked V5, which was played by the CIVC in opening. This video depicted a bottle of Gusbourne sparkling wine, which is an English sparkling wine. Initially, the video focused on the words MÉTHODE ANGLAISE (which are the French words for “English Method” and appear to reference the French phrase “Méthode Champenoise”, which means “Champagne Method”). The video then panned down to show the front label of the bottle. When presented through the Champagne Jayne Vine Account (and, consequently, under the name CHAMPAGNE JAYNE), this video created an impression that the wine depicted was or was likely to be a Champagne wine. That impression was misleading.

262    Some other social media postings falling into this category were referred to during the cross-examination of Ms Powell. The same conclusion can be reached in respect of these further examples.

Category 4

263    The following are examples of Ms Powell’s conduct falling into Category 4:

(a)    the Instagram post marked I9, which was posted by Ms Powell from the Instagram Account on 8 December 2013; and

(b)    the Facebook post marked F3, which was posted by Ms Powell from the Facebook Page on 15 December 2012.

I9

F3

264    The example Instagram post referred to above contains a picture of two bottles of Digby. They are pictured alongside two bottles of Champagne wine. The caption accompanying the photo states “from english to espilrit by champagne henri giraud”.

265    The Instagram post conveys that Digby is or is likely to be a Champagne wine. Again, some members of the public may take this to mean that Digby emanates from the Champagne region. Other members of the public may take this to mean that Digby has the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne.

266    By publishing the Instagram post, Ms Powell has contravened s 18 of the ACL.

267    The example Facebook post referred to above contains a picture of a bottle of Nyetimber. It is pictured alongside two bottles of Champagne wine. The caption accompanying the photo states “An effervescent English rose caught between two charismatic champagne thorns!”.

268    The Facebook post conveys that Nyetimber is or is likely to be a Champagne wine. Again, some members of the public may take this to mean that Nyetimber emanates from the Champagne region. Other members of the public may take this to mean that Nyetimber has the characteristics of a Champagne wine, including having been made in accordance with the strict rules governing the use of the name Champagne.

269    By publishing the Facebook post, Ms Powell has contravened s 18 of the ACL.

Other matters

270    First, Ms Powell has contended that the CIVC’s arguments are founded on four false assumptions:

(a)    The first false assumption is that Champagne means the same thing to Australian consumers as it means to the CIVC.

(b)    The second false assumption is that Champagne means the same thing to Australian consumers irrespective of the context in which it is presented (e.g. displayed on a bottle versus discussed at an event versus when used as a Twitter handle).

(c)    The third false assumption is that Australian consumers expect someone in the business of educating people about Champagne only to talk about Champagne.

(d)    The fourth false assumption is that the impugned conduct concerns use of Champagne when in fact it concerns use of Champagne Jayne, with the consequential impact on Australian consumer perceptions when confronted with the latter as distinct from the former.

271    In my opinion, the CIVC’s case does not depend on any of the first, second or third assumptions. In relation to the first assumption, the CIVC only contends for that position in relation to some consumers. In relation to the second assumption, the CIVC’s case depends on context being considered. The third assumption is not made by the CIVC. Its position though is that a person who provides wine education services should clearly distinguish between Champagne wines and sparkling wines when referring to the latter, particularly an educator who uses the title Champagne Jayne when discussing sparkling wines. The fourth assumption is made by the CIVC in one sense, but there is nothing unjustified in making it. Indeed, in my view there is an air of artificiality and uncommerciality in Ms Powell seeking to distinguish between the use of Champagne and the use of Champagne Jayne. The latter title and persona have clothed all her activities including references to and the promotion of sparkling wines. At the least, Australian consumers would or would be likely to so perceive.

272    Second, Ms Powell has asserted that the CIVC has located only a small number of isolated examples in her social media. That is a fair point, but in my view it goes more to the question of relief.

273    Third, it has been submitted on behalf of Ms Powell that the impugned Tweets are so fleeting in nature that they do not rise to the level required to mislead, or to be likely to mislead, a member of the public. It may be accepted that a representation may be so fleeting that it does not rise to the level of misleading conduct, particularly if it is dispelled promptly. But where a casual follower of Ms Powell’s Twitter feed reads (perhaps quickly or in a distracted way) one of the impugned Tweets, it may be days, if not weeks, before that follower reads a further Tweet from Ms Powell, let alone a Tweet which dispels any misconception created by the impugned Tweet. Further, the communication may be fleeting, but the impression created by it may be more enduring.

274    Fourth, and relatedly, although Tweets form part of a feed, receivers or viewers may not read them as feed. Further, a particular Tweet may not be read in a particular context. Further, a reader may read some Tweets and not others.

Summary

275    In my view, Ms Powell’s conduct in her use of social media and her reference to sparkling wines has contravened s 18 of the ACL in the manner exemplified above. That conduct has been carried out by her in the course of conducting her business under the name Champagne Jayne. That conduct was in trade or commerce.

alleged contraventions of the AGWA Act

276    Section 40A of the AGWA Act provides as follows:

The object of this Part is to regulate the sale, export and import of wine:

(a)    for the purpose of enabling Australia to fulfil its obligations under prescribed wine-trading agreements and other international agreements; and

(b)    for certain other purposes for which the Parliament has power to make laws;

and this Part is to be interpreted and administered accordingly.

277    Section 40C provides as follows:

(1)    A person commits an offence if:

(a)    the person sells, exports or imports wine; and

(b)    the wine is sold, exported or imported by the person:

(i)    in trade or commerce; and

(ii)    with a false description and presentation.

…

278    Section 40D states:

…

(2)    Subject to sections 40DA and 40DB, the description and presentation of wine is false if:

…

(b)    it includes a registered geographical indication, and the wine did not originate in a country, region or locality in relation to which the geographical indication is registered; or

…

(3)    Subsection (2) does not limit what, apart from that subsection, is a false description and presentation of wine.

…

279    Sections 40DA and 40DB are not relevant to this proceeding.

280    Section 40E provides:

(1)    A person commits an offence if:

(a)    the person sells, exports or imports wine; and

(b)    the wine is sold, exported or imported by the person:

(i)    in trade or commerce; and

(ii)    with a misleading description and presentation.

…

281    Section 40F states:

…

(2)    Subject to sections 40FA and 40FB, the description and presentation of wine is misleading if:

(a)    it includes a registered geographical indication, and the indication is used in such a way as to be likely to mislead as to the country, region or locality in which the wine originated; or

…

(7)    Subsections (2), (3), (4), (5) and (6) do not limit what, apart from those subsections, is a misleading description and presentation of wine.

282    Sections 40FA and 40FB are not presently relevant.

283    There are relevant definitions. In s 4(1), “sell” is defined to include “offer, expose or advertise for sale”. Under s 5C, the phrase “description and presentation” is defined in the following terms:

In this Act, a reference to the description and presentation with which wine is sold, exported or imported is a reference to all names (including business names) or other descriptions, references (including addresses), indications, signs, designs and trade marks used to distinguish the wine and appearing:

(a)    on the container (including on the device used to seal the container or on a label affixed to the container), on any tag attached to the container or, if the container is a bottle, on the sheathing covering the neck of the bottle; or

(b)    on protective wrappings (such as papers and straw envelopes of all kinds), cartons and cases used in the packaging of the wine or the transport of the wine; or

(c)    in documents relating to the transport of the wine or in other commercial documents (for example, invoices or delivery notes) relating to the sale or transport of the wine; or

(d)    in advertisements relating to the wine.

284    Section 40K gives standing to the CIVC to commence and prosecute proceedings against Ms Powell in respect of such contraventions. Section 44AB also gives the CIVC standing to pursue any injunctive remedy in respect of such contraventions. Ms Powell has contended that even though the CIVC only seeks civil relief, it must establish both the physical elements and the fault elements of the offences although only on the balance of probabilities (Comite Interprofessionnel des Vins des Cotes de Provence v Bryce (1996) 69 FCR 450 at 459 per Heerey J). The fault elements are now contained in the Commonwealth Criminal Code (Sch to the Criminal Code Act 1995 (Cth)). I am prepared to proceed on an assumption in favour of Ms Powell that the CIVC must also establish the fault elements notwithstanding that they no longer expressly appear in the AGWA Act and that the present proceedings are for a civil remedy only including injunctive relief, although I have reservations as to the validity of that assumption. Certainly, the express text of s 44AB(6) would deny the validity of the assumption in relation to any claim for injunctive relief. Moreover, s 44AB is more focused on conduct.

285    But proceeding on that assumption for the moment, it appears that there are two threshold problems with the CIVC’s case.

286    First, the CIVC has failed to plead any of the fault elements in its amended statement of claim or to prove the same.

287    Second, although “champagne” has been listed since 1994 as a registered protected geographical indication, it was exempted from the operation of predecessor versions of ss 40C and 40E until 1 September 2011; reg 13(1) of the Australian Wine and Brandy Corporation Regulations 1981 (Cth) (as amended) exempted “champagne” from the operation of the predecessor ss 40C and 40E until 12 months after the 2010 Agreement entered into force; see also the predecessor reg 13(3). Accordingly, arguably any conduct that occurred prior to 1 September 2011 in relation to the name Champagne and its application to wines was excluded from the coverage of ss 40C and 40E. Nevertheless, the CIVC contends that since various Tweets, posts, articles or YouTube clips posted by Ms Powell prior to 1 September 2011 were still viewable thereafter, Ms Powell is still liable under ss 40C and 40E for such conduct.

288    I do not need to resolve any of these questions concerning the application and satisfaction of the fault elements or the issue of retrospectivity. That is because the CIVC’s case fails for other reasons.

289    The CIVC has primarily relied on Ms Powell’s conduct in connection with Arras (see [164] to [166]) to establish that she has contravened ss 40C and 40E. It asserts that:

(a)    Ms Powell’s “promotion” of Arras constituted “selling” for the purposes of ss 40C and 40E because “sell” was defined to include “advertise for sale” under s 4(1); and