It’s an incredible thing, but there are people who still believe that Seppelt Great Western Champagne actually comes from Great Western, Victoria. With a name like that it’s got no right to come from anywhere other than Champagne, which it certainly does not, but it just goes to show how much we Australians have habitually converted names of specific sites and vineyards to actual wine brands. Traditionally it has happened so slowly that it’s hardly been perceptible to anyone other than the brand managers whose scheme it was. Despite efforts made by the Australian wine industry and the initiation of the Label Integrity Programme which has done much to reinforce to makers the importance of getting their wine labels at least 85% correct, there’s still a murkiness about the way in which names are bandied about on labels of some Australian wines. The Victorian winery of Yarra Ridge is a case in point. Its name would suggest that the contents of each bottle would be of Yarra Valley origin. This is indeed predominantly the case, but recent vintages of Yarra Ridge Sauvignon Blanc have been partially sourced from outside the Yarra Valley. More than 15% of some vintages, in fact. Yarra Ridge has broken no law by doing this, for it made no claim to regional Yarra origin on the labels of these wines. But even if consumers were aware of the 85% law, it’s my bet that many would have assumed that any wine bottled as ‘Yarra Ridge’ would be at least 85% Yarra Valley. This is where the Geographical Indications Committee (GIC) steps in. The Australian Wine and Brandy Corporation established it in 1994 with the power to name and define the boundaries of Australian wine regions and localities, called geographical indications (GIs). Since the words ‘Yarra Ridge’ are a brand name and are not a registered geographical indication, the GIC has no say over it, regardless of how closely this name may resemble the registered GI of ‘Yarra Valley’. Again, Yarra Ridge has not infringed any law, but this case shows how much consumers need to know if they are fully to understand what our labels do and do not say. Lenswood Vineyards was established by Tim and Annie Knappstein in 1981. Although two other vineyard developments were founded in the region at or around the same time, the Knappsteins chose to call their vineyard by the name of the nearest township. Several years later, Lenswood was named as a registered GI by the GIC. Now they share a name with the GI, the Knappsteins are not permitted to bring into their wines more than 15% of fruit from any vineyard outside their GI boundary. If they did, they would have to change their brand name from Lenswood Vineyards to something else. How consistent is this with the Yarra Ridge situation? Furthermore, since the registration of the GI, the Knappsteins are not able to register their name as a trademark. They can still find some trade protection by registering their company device and logo, but would not legally be able to prevent somebody setting up next door as ‘Lenswood Wine Cellars’, for instance. They would have only one defence to such a move: to sue on the basis of passing off. This is more or less what Jeffrey Sher QC, proprietor of Port Phillip Estate has recently done to Donlevy Fitzpatrick of Clyde Park and various companies associated with the marketing of Clyde Park wines. Sher has made and bottled wines under the Port Phillip Estate label since 1988. The GIC determined ‘Port Phillip’ as a GI in 1995. One might have thought that in so doing the GIC was making a position that the words ‘Port Phillip’ could be freely allowed to appear on the labels of wine whose fruit was sourced from within its defined boundaries without fear of litigation. Sher’s allegation was that in producing and selling wine using the words Port Phillip Chardonnay as he did, Fitzpatrick was passing off a Clyde Park wine as Port Phillip Estate. The writ cites the way the words were presented on the wine’s label and also the fashion in which bottles were advertised on a chalkboard at The Dog’s Bar in Melbourne, as ‘Port Phillip Chardonnay’. It was asserted that a customer at The Dog’s Bar requested a glass of Port Phillip Estate Chardonnay and was subsequently served the wine from Clyde Park presented this way. As the actual labels illustrate, there’s a huge difference between the two and Fitzpatrick has undertaken every imaginable effort to ensure that the regional origins of his wine are obvious to all. Not only is Fitzpatrick one of the most passionate supporters of the concept of regional integrity I have ever struck, but his defence posed the question of why he might want to pass off his wine as Port Phillip Estate’s. Clyde Park has been associated with fine table wine for significantly longer than Port Phillip Estate and I remember thoroughly enjoying its 1982 Chardonnay. The issue has now been settled, but it’s disappointing that the industry has yet to give sufficient teeth to the GIC to solve such issues without the expense of litigation. Ernie Sullivan, Geographical Indicators secretary, says that passing off is not a matter for the GIC. Perhaps it could be. The GIC is also noticeably silent on the matter of another case before the Federal Court, between Koppamurra Wines and Mildara Blass over the use of the word ‘Koppamurra’ on labels of Mildara Blass wine. ‘Koppamurra’ is a registered trademark owned by Koppamurra Wines Pty Ltd and for as long as it remains so, remains under trademark law the exclusive right of this company. As such, it cannot be designated as a GI because ‘we would be over-riding someone else’s legislation’, says Ernie Sullivan. ‘It’s a trademark issue, not ours’, he says. Koppamurra Vineyards has used the Koppamurra name since 1975 and has owned it as their trademark since 1992. Since 1993 around 950 ha of vines have been planted nearby by other growers. Last year the ‘Koppamurra Grape Growers Association’, whose 19 members include BRL Hardy, Mildara Blass Ltd & S Smith & Son initiated a florid publicity campaign to persuade interested parties that since Koppamurra is a long-established regional name, its use should not be restricted to a single proprietor. Not unsurprisingly, Koppamurra Vineyards rejects this view, saying that while ‘Koppamurra’ was the name of a local grazing property and telephone exchange, the locals have not always known the region by that name. The release in November 1997 by Mildara Blass of 926 cases of a wine labelled as 1995 Flanagan’s Ridge Cabernet Sauvignon, which prominently highlights its ‘Koppamurra’ origins and accompanied by an expensive marketing campaign denoting the history and qualities of the ‘Koppamurra’ region, has brought the issue to a head. Present legislation requires the owner of a trademark to defend its distinctiveness or else face the risk the mark might be found by a court to be sufficiently deceptive or confusing to warrant its expungement. So, as David took on Goliath, has Koppamurra Vineyards has taken on Mildara Blass. At time of writing the saga has reached an interesting stage. Judge von Doussa of the Federal Court has placed an interlocutory injunction on Mildara Blass, preventing it from using the word ‘Koppamurra’ on the labelling, packaging, marketing or promotion of any of its wines and from holding out to the public that Koppamurra is an established regional name. Remaining stock of the Flanagan’s Ridge has been repackaged without any reference to Koppamurra, stating on its back label that it is ‘!grown in the new viticultural area immediately north of Coonawarra’. According to the judge, Mildara Blass could have taken other courses to resolve the matter, such as attempting to expunge Koppamurra’s trademark. Mildara Blass ‘has deliberately sought to resolve the dispute over the use of the Koppamurra name by taking the matter into its own hands’, he says in his Reasons for Judgement. ‘I consider that many of the losses which the respondent says are likely to flow from an injunction are losses that the respondent will encounter because it chose to pursue a commercial solution to the problem and the risks that were associated with it,’ Meanwhile, Koppamurra Wines must provide security of $250,000 in the event that once judgement is finally released, Mildara Blass Ltd is found to have won the case and is therefore deemed worthy of damages as a result of the injunction. There are between 15-20,000 cases of the forthcoming 1996 vintage of Flanagan’s Ridge and there are clearly costs associated in delaying the release of this volume of wine. Meanwhile the case continues, again to the silence of the body specifically established to define Australia’s wine regions. For how much longer must the GIC remain a toothless tiger? In late news as this issue goes to press, Mildara Blass’ Wine Communications Manager Stuart Gregor has indicated that a mutually acceptable agreement between Koppumurra Wines and Mildara Blass is imminent. ‘An in-principle agreement between both parties and the Koppamurra Grapegrowers Association has almost been reached and all that now remains is for us to settle the finer details’, he said. ‘We are hopeful of reaching a full settlement later in the year.’
