Wine Law Questions Essay Example
Tutorial Questions: Wine Law
Thomson v Seppelt
Basing on the case, it can be argued that actions in trademark or passing off infringement are used in an oppressive way. The branding of alcoholic drinks has been regarded as particularly prone to legal controversy. The court of was called to make a ruling on the trademark of the name of “Great Western” with regard to wine. This is the point of departure in this assignment; assessing issues and decisions made by the high court judge.
The first issue in this case is that “Great Western” was and had been there for more than sixty-five years, the name shared with a township in the Western District of Victoria. To begin with, the court found that to some level the significance of the expressions Great Western is regional and as such growers in the district required it for the purpose of denoting the place of origin of their goods. In as much, the conclusion made denoted a place and has come to mean, within the context of Australia generally, the applicant’s wine produced from grapes that were grown in the district of Great Western. In my opinion, this conclusion is not justified especially with the evidence. Exhibits indicated that in every advertisement or label, name of the dealer and manufacturer was used in conjunction with or in relation to the words Great Western, am further obliged to think that the fair result of exhibit is the that since the its establishment within the district the expression were used in their geographical signification as applying to wines made from grapes grown in the district. This view is consistent with sections 16 of the Trade Marks Act 1905-1912 where a trademark that should be registered must have interalia words that have not direct reference to the quality or character of the goods. Conclusively, basing on the evidence, Great Western are in accordance with their basic signification a geographical name, and that, as with the case with wine, the intended meaning is that the wine was produced from grapes that were grown in the district of Great Western. Therefore the words are not adapted to differentiate or distinguish the wine of the respondent from that made by other individuals coming from grapes grown in the same district. For these reasons the appeal should have been allowed.
Additionally, irrespective of the decision of the court, it must ensure that the public does not suffer from the monopoly. This brings the second issue of the case; since the application was made according with part (e) of section 16, sub-section 1, the trademark that ought to be registered must be “distinctive” mark that is not following under any other paragraph of the same section. When referring to distinctive such should comply with statutory definition of sub-section 2. This was brought clearly in the case involving W.N. Sharpe Ltd v. Solomon Bros. Ltd. Therefore, when making determination sub-section 3 allows the past effect of real user to be taken into consideration as an umbrella when making determination to the present. As the matter stands, there is no existence in the argument of expense or even advertisement of trade in by gone years except so far as all that has been produced by the user of the mark some extent of distinctiveness. Applying such principles to the facts, it is clear that respondent must fail. The term as applied to the wines whether sparkling or still must have been a geographical term.
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