Part 1 Preliminary
1 Name of Regulations [see Note 1]
These Regulations are the Wine Australia Corporation
Regulations 1981.
2 Repeal
of the Wine Overseas Marketing (Licences) Regulations
Statutory Rules 1954 No. 88, 1959 No. 3 and 1973
No. 112 are repealed.
3 Interpretation
(1) In these Regulations, unless the contrary intention
appears:
Act means the Wine Australia Corporation
Act 1980.
Agreement means the Agreement between
Australia and the European Community on trade in wine, done at Brussels on
1 December 2008.
Note Information about the Agreement is
available from the Australian Treaties Database at www.dfat.gov.au/treaties.
approved means approved by the Corporation.
Australia New Zealand Food Standards Code has
the same meaning as in the Food Standards Australia New Zealand
Act 1991.
Australian standard means a standard within
the meaning of the Food Standards Australia New Zealand Act 1991.
export certificate means a certificate issued
by the Corporation under regulation 7.
GI means geographical indication.
licence means a licence granted under
regulation 5.
licensee means the holder of a licence.
product label means a label attached to, or
writing or other sign appearing on, a bottle or other package of a grape
product.
proposed GI has the meaning it has in
subsection 40RA (1) of the Act.
proposed item has the meaning given by
subregulation 57 (1).
relative, in relation to an individual, means
the spouse, de facto partner (within the meaning of the Acts Interpretation
Act 1901), parent or other ancestor, child or other descendant,
brother or sister of the individual.
(2) Without limiting who is a child of a person for the
purposes of the definition of relative in
subregulation (1), someone is the child of a person if he or
she is a child of the person within the meaning of the Family Law Act 1975.
(3) If one person is the child of another person because
of the definition of child in subregulation (2),
relationships traced to or through the person are to be determined on the basis
that the person is the child of the other person.
4 Grape
products
For the purposes of paragraph (d) of the definition
of grape product in subsection 4 (1) of the Act, a product is a
grape product for the purposes of the Act if:
(a) it includes wine; and
(b) it is derived in whole or in part from
prescribed goods; and
(c) it is not a grape product referred to in
paragraph (a), (b) or (c) of that definition; and
(d) an Australian standard applies to it.
Part 2 General export controls
5 Grant
of licences
(1) The Corporation may, on the application of a person
and after taking into consideration the prescribed matters in relation to the
person, grant to the person a licence to export grape products from Australia.
(2) A licence granted under this regulation:
(a) shall be in accordance with an approved
form; and
(b) remains in force for such period, not
exceeding 3 years, as is specified in the licence, and may be renewed.
(3) For the purposes of subregulation (1), the
prescribed matters are:
(a) the financial standing of the applicant; and
(b) whether the applicant has a place of business
in Australia; and
(c) the applicant’s ability to obtain grape
products from Australian suppliers; and
(d) matters applicable to the person that relate
to the promotion of the export of grape products, including matters that may
affect adversely the export trade in grape products; and
(e) any other matters relating to the promotion
of the export of grape products; and
(f) whether the Corporation has cancelled a
licence held by the applicant; and
(g) if the applicant is an individual —
whether the Corporation has cancelled a licence held by a corporation of which
the applicant was a director or a shareholder who held a controlling interest.
6 Conditions
of export — general
(1) The export of a grape
product is prohibited unless:
(a) the exporter is a licensee; and
(b) the Corporation has approved:
(i) the purchaser of the product; or
(ii) the person to whom the product is
consigned as an agent or representative of the purchaser, or the licensee, in
the country to which the product is consigned; and
(c) the product is exported in accordance with
any directions given to the licensee by the Corporation; and
(d) the product is sound and merchantable; and
(e) the licensee has given the Corporation
samples of the product and the product label for the purpose of determining the
soundness and merchantability of the product; and
(ea) the exporter has complied with any request
for further information made under subregulation (6),
subregulation 6A (4) or subregulation 7 (3A); and
(f) the Corporation has issued an export
certificate for the product.
(2) Subregulation (1) does not apply to the export of a
small quantity of grape product within the meaning given by subregulation (3)
or (4).
(3) A quantity of grape product is a small
quantity of grape product if it is to be exported, whether or not to 1
consignee:
(a) by 1 exporter, or by 2 or more exporters
that are taken to be 1 exporter; and
(b) on 1 ship or aircraft to a single port of
discharge; and
(c) in a total quantity of no more than 100
litres.
(4) A quantity of grape product is a small
quantity of grape product if it is any of the following:
(a) a quantity of grape product that is
contained in the personal luggage of a traveller;
(b) a quantity of
grape product for the household of an individual who is moving house;
(c) a quantity of grape product that is intended
to be displayed at a trade fair or comparable event;
(d) a quantity of grape product that is to be
exported for a scientific or technical purpose;
(e) a quantity of grape product that is to be
exported by a diplomatic, consular or similar establishment as part of the
duty-free allowance of the establishment;
(f) a quantity of grape product that is held on
board a means of international transport as victualling supplies;
(g) a quantity of grape product that is a
commercial sample for a prospective buyer.
(5) For paragraph (3) (a), 2 or more exporters are
taken to be 1 exporter if the exporters are:
(a) related bodies corporate (within the meaning
of the Corporations Act 2001); or
(b) individuals who are relatives; or
(c) individuals who are acting in concert with
each other.
(6) For the purpose of verifying a label claim made in
relation to wine, the Corporation may request the exporter to provide a record
kept under section 39F of the Act.
(7) A request must:
(a) be made in writing; and
(b) identify the label claim; and
(c) state the date by which the exporter must
provide the record to the Corporation.
6A Conditions
of export — food standards
Prohibition of export
(1) The export of a grape product is prohibited unless
the product complies with the Australia New Zealand Food Standards Code.
Partial compliance with Code
(2) Subregulation (1) does not apply to the export of a
grape product if:
(a) the grape product does not comply with the
Australia New Zealand Food Standards Code in particular respects; and
(b) the grape product complies with the Code in
all other respects; and
(c) the Corporation is satisfied that:
(i) the product meets any requirements
for grape products imposed by the country to which the product is to be
exported; and
(ii) the non‑compliance will not
compromise the reputation of Australian grape products; and
(d) the Corporation approves the export.
(3) The approval must:
(a) be given to the exporter in writing; and
(b) must identify the particulars of the non‑compliance;
and
(c) must state that the product must comply with
the Code in any other respect.
Provision of records
(4) The Corporation may ask an exporter to provide
records demonstrating that the grape product complies with the Australia New
Zealand Food Standards Code in particular respects.
(5) The request must:
(a) be made in writing; and
(b) state the respects in which compliance with
the Code needs to be demonstrated; and
(c) state the date by which the exporter must
provide the records to the Corporation.
6B Conditions
of export — labelling of grape products other than wine, brandy or grape
spirit
(1) The export of a grape
product other than wine, brandy or grape spirit is prohibited if the
description and presentation of the grape product includes:
(a) a registered geographical indication other
than the term ‘Australia’; or
(b) a registered translation; or
(c) the name of a variety or varieties of
grapes; or
(d) the year in which the grapes from which the
grape product was manufactured were harvested.
(2) In this regulation, the definition of description
and presentation in the Act applies in relation to a grape product other
than wine in the same way as it applies in relation to wine.
7 Export
certificates
(1) A licensee may apply for an export certificate by
notifying the Corporation of the proposed export of a grape product.
(2) The licensee must notify the Corporation by lodging
with it a notification of the proposed export of a grape product in an approved
form.
(3) A notification must be given at least 10 days before
the day on which the grape product is to be exported.
(3A) For the purpose of considering a notification, the
Corporation may request the licensee to give it information that satisfies the
Corporation that a requirement relating to the description and presentation of
the grape product under a Commonwealth, State or Territory law has been met.
Example
If a grape product is described as ‘organic’ and is a
product to which the Export Control (Organic Produce Certification) Orders
apply, the Corporation may ask the licensee who proposes to export the product
to give the Corporation information that satisfies it that an organic produce
certificate has been issued for the product.
(3B) A request under
subregulation (3A) must:
(a) be made in writing within 3 working days
after the Corporation receives the notification; and
(b) identify the requirement and the
Commonwealth, State or Territory law under which it applies; and
(c) state the date by which the licensee must give
the information to the Corporation.
(4) If the export of the grape product would comply with
the conditions for export that apply to it, the Corporation must issue an
export certificate to that effect before the day on which the product is to be
exported.
(5) The Corporation may issue an export certificate by
electronic means.
(6) If the export of the grape product would not comply
with the conditions for export that apply to it, the Corporation must:
(a) refuse to issue an export certificate; and
(b) send a statement to that effect to the
licensee, setting out the grounds on which the export would not comply with the
conditions.
(7) The Corporation may revoke an export certificate if
the export of the grape product ceases, or would cease, to comply with the
conditions for export that apply to the product.
8 Powers
of Corporation
The Corporation, or a person authorised by it, may
give to a licensee written directions about the quantities of grape product
that the licensee may export:
(a) generally; or
(b) to a country specified in the directions; or
(c) to a person, agent or representative
specified in the directions.
9 Suspension
and cancellation of licences
(1) The Corporation may
suspend or cancel a licence if:
(a) a material change has occurred in respect of
the licensee in relation to a matter referred to in subregulation 5 (3);
and
(b) if the change is to the licensee’s place of
business in Australia — the licensee does not inform the Corporation of
the new place of business in Australia within 14 days of the change.
(2) The Corporation may suspend or cancel a licence if
the licensee exports a grape product in contravention of a provision of the Act
or these Regulations.
(3) The Corporation may suspend or cancel a licence if:
(a) the licensee claims that the Corporation has
given an approval in relation to the export of a grape product; and
(b) the Corporation has not given an approval of
that kind in relation to the export.
10 Application
for review of decision
An application may be made to the Administrative
Appeals Tribunal for the review of:
(a) a refusal by the Corporation under
subregulation 5 (1) to grant a licence; or
(aa) a decision by the Corporation under
subregulation 6A (2) to approve, or refuse to approve, the export of a
grape product that does not comply with the Australia New Zealand Food
Standards Code; or
(b) a refusal by the Corporation under
subregulation 7 (6) to issue an export certificate; or
(c) a decision of the Corporation under
subregulation 7 (7) to revoke an export certificate; or
(d) a decision of the Corporation under
regulation 9 to suspend or cancel a licence.
11 Corporation
may require information
(1) A person shall, if
required to do so by the Corporation by notice in writing, furnish to the
Corporation, within such time as is specified in the notice, such returns and
information as are specified in the notice relating to the sale, disposal or
export, or the intended sale, disposal or export, by the person of grape
products.
(2) A person to whom such a notice is given must not
neglect or fail to furnish the return or information to the Corporation within
the specified time.
(2A) It is a defence to a
prosecution under subregulation (2) if the defendant has a reasonable excuse.
Note A defendant bears an evidential
burden in relation to the matter set out in subregulation (2A) — see
section 13.3 of the Criminal Code.
(3) A person is not excused from furnishing a return or
information that he is required to furnish by virtue of a notice given, or sent
by post, to him under subsection (1) on the ground that the return or
information might tend to incriminate him or make him liable to a penalty, but
any return or information so furnished is not admissible in evidence against
him in proceedings other than proceedings for an offence against subregulation
(4).
(4) A person shall not furnish to the Corporation a
return or information that is false or misleading in a material particular.
Penalty: 10 penalty units.
Part 2A Label Integrity Program
11A Prescribed geographical indication
For the definition of prescribed
geographical indication in subsection 4 (1) of the Act, a
geographical indication included in the Register with respect to Australia is
prescribed.
Part 3 Exemption
of wines from offence provisions
12 Small
quantities of wine
(1) For the purposes of
the definition of small quantities in subsection 40J (1) of the
Act, wine:
(a) that is contained in labelled containers,
each of which:
(i) has a capacity of not more than 5
litres; and
(ii) is fitted with a non-reusable
closing device; and
(b) that is exported, whether or not to 1
consignee:
(i) by 1 exporter, or by 2 or more
exporters that are taken to be 1 exporter; and
(ii) on 1 ship or aircraft to a single
port of discharge; and
(iii) in a total quantity of no more
than 100 litres;
is declared to be a small quantity of wine.
(2) For the purposes of the definition of small
quantities in subsection 40J (1) of the Act, the following are declared
to be small quantities of wine:
(a) a quantity of wine, not exceeding 30 litres,
that is contained in the personal luggage of a traveller:
(b) a quantity of wine, not exceeding 30 litres,
that is sent in a consignment by an individual to another individual;
(c) a quantity of wine for the household of an
individual who is moving house;
(d) a quantity of wine:
(i) that is intended to be displayed
in Australia, or an agreement country, at a trade fair, or a comparable event,
for the purposes of the customs laws of the relevant country; and
(ii) that is packed in labelled
containers of a capacity of not more than 2 litres and fitted with a
non-reusable closing device;
(e) a quantity of
wine, not exceeding 1 hectolitre, that is imported into Australia, or exported
to an agreement country, for the purpose of scientific or technical purposes;
(f) a quantity of wine that is imported into
Australia, or exported to an agreement country, by a diplomatic, consular or
similar establishment as part of the duty-free allowance of the establishment;
(g) a quantity of wine that is held on board a
means of international transport as victualling supplies.
(3) For subparagraph
(1) (b) (i), 2 or more exporters are taken to be 1 exporter if the
exporters are:
(a) related bodies corporate (within the meaning
of the Corporations Act 2001); or
(b) individuals who are relatives; or
(c) individuals who are acting in concert with
each other.
13 Geographical
indications and traditional expressions
(1) For subsection 40J (5) of the Act, the use of a
geographical indication or traditional expression mentioned in Schedule 1 is
exempted from the operation of sections 40C and 40E of the Act until 12 months after the Agreement enters into force.
(2) For subsection 40J (5) of the Act, the use of
the geographical indication ‘Tokay’ is exempted from the operation of sections
40C and 40E of the Act until 10 years after the Agreement enters into force.
14 Vine
varieties: Hermitage
For the purposes of subsection 40J (5) of the Act,
the use of the name Hermitage to describe and present wine is
exempted from the operation of section 40C of the Act, until 12 months
after the Agreement enters into force, if:
(a) the name is used as a synonym for the grape
variety Shiraz; and
(b) the wine originates in Australia; and
(c) the wine is sold in a country other than an
EC country.
15 Vine
varieties: Lambrusco
For the purposes of
subsection 40J (5) of the Act, the use of the name Lambrusco to
describe and present wine is exempted from the operation of section 40C of the
Act, until 12 months after the Agreement enters into force, if:
(a) the name is used to describe a style of wine
traditionally made and marketed under that name; and
(b) the name is not used to describe a variety of
grapes from which the wine is made; and
(c) the wine originates in Australia; and
(d) the wine is sold in a country other than an
EC country.
16 Variety
names that are also geographical indications
For subsection 40J (5) of the Act, the use of a
name in Schedule 2 to describe and present wine originating in Australia
is exempted from sections 40C and 40G of the Act if the name is used to
describe a variety of grapes from which the wine is made.
17 Marketing
periods for use of geographical indications, registered traditional expressions
and registered additional terms
(1) For subsection
40J (5) of the Act, the use of a registered geographical indication, a
registered translation, a registered traditional expression or a registered
additional term to describe and present wine is exempted from the operation of
the offence provisions if:
(a) the offence provisions would apply to the
use of the indication, translation, expression or term after the day on which
this regulation commences; and
(b) the wine was lawfully produced before the day
on which the offence provisions first apply to the use of the indication,
translation, expression or term; and
(c) the indication, translation, expression or
term is used by:
(i) a wholesaler of wine acting in the
course of the wholesaler’s business; or
(ii) a retailer of wine in the course
of the retailer’s business.
Note The offence provisions is
defined in subsection 40J (1) of the Act.
(2) The exemption in subregulation (1):
(a) ceases to apply to the use of the
indication, translation, expression or term by a wholesaler in the description
and presentation of fortified wines at the end of 5 years commencing on the day
on which the offence provisions first apply to the use of the indication,
translation, expression or term; and
(b) ceases to apply to the use of the indication,
translation, expression or term by a wholesaler in the description and
presentation of other wines at the end of 3 years commencing on the day on
which the offence provisions first apply to the use of the indication, translation,
expression or term.
(3) The exemption in subregulation (1) ceases to apply
to the use of the indication, translation, expression or term by a retailer in
the description and presentation of fortified wines:
(a) at the end of 5 years commencing on the
day on which the offence provisions first apply to the use of the indication,
translation, expression or term; or
(b) if the retailer has a stock of the fortified
wine at the end of that period — when that stock is exhausted.
(4) The exemption in subregulation (1) ceases to apply
to the use of the indication, translation, expression or term by a retailer in
the description and presentation of wines other than fortified wines:
(a) at the end of 3 years commencing on the day
on which the offence provisions first apply to the use of the indication,
translation, expression or term; or
(b) if the retailer has a stock of the wine at
the end of that period — when that stock is exhausted.
17A Use
of trade mark in description of wine
(1) This regulation applies if:
(a) the Registrar of Trade Marks decides, under
subsection 40RC (2) of the Act, that an objection to a proposed GI is
made out, and the GI is subsequently registered in accordance with
section 40ZD (2) of the Act; or
(b) the Registrar of Trade Marks decides, under
regulation 67, that an objection to a proposed item is made out, and the
item is subsequently registered in accordance with section 40ZD (2)
of the Act; or
(c) a trade mark is registered or is the
subject of a pending application under the Trade Marks Act 1995 and:
(i) after the registration of, or
application for, the trade mark, a GI or translation is proposed and
registered; and
(ii) the GI or translation is identical
to, or is likely to cause confusion with, the trade mark; or
(d) a trade mark listed in Schedule 3 is
identical to:
(i) a registered GI that indicates a
foreign country or a region or locality in a foreign country; or
(ii) a registered translation of such a
GI; or
(e) a trade mark listed in Schedule 3 is
likely to cause confusion with:
(i) a registered GI that indicates a
foreign country or a region or locality in a foreign country; or
(ii) a registered translation of such a
GI.
(2) For subsection 40J (5) of the Act, the use of
the trade mark to describe and present wine that did not originate in the
country, region or locality indicated by the registered GI or registered
translation is exempted from the offence provisions to the extent that:
(a) the offence provisions relate to the use
of:
(i) a registered GI or a registered
translation; or
(ii) an indication or term that
resembles a registered GI or a registered translation; and
(b) the origin of the wine is shown in the
description and presentation of the wine in a way that is not likely to
mislead.
Note The offence provisions is
defined in subsection 40J (1) of the Act.
Part 4 Description
and presentation of wine
18 Interpretation
In this Part, wine means wine that is
offered for sale in Australia, imported into Australia or exported from
Australia.
19 Wine
originating in more than one country
For subsection 40F (6) of the Act, if wine is made
from grapes grown in more than one country, the description and presentation of
the wine must identify the proportion of the wine that originated in each country.
20 Grape
varieties
(1) For subsection 40F (6) of the Act, a name
used for a variety in the description and presentation of wine originating in
Australia must be a name of a variety, or a synonym of a name, that is
recognised as a name or a synonym by at least one of the following
organisations:
(a) International Organisation of Vine and Wine;
(b) International Union for the Protection of New
Varieties of Plants;
(c) International Plant Genetic Resources
Institute.
(2) For subsection 40F (6) of the Act, if wine
originating in Australia is made from two or more varieties, the wine may only
be described and presented as being of a particular variety if at least 850ml/L
of the wine is obtained from that variety.
(3) For subsection 40F (6) of the Act, if the
description and presentation of wine originating in Australia refers to more
than one variety:
(a) the description and presentation must list
the varieties in descending order of their proportions in the wine; and
(b) each variety named in the description and
presentation must be present in greater proportion in the composition of the
wine than any variety that is not named; and
(c) in total, at least 850ml/L of the wine must
be obtained from the named varieties.
(4) For the purpose of determining the proportion of the
varieties under subregulation (2) or (3), the quantity of products used for
possible sweetening and cultures of micro‑organisms, not exceeding a total of
50ml/L, is excluded.
(5) For this regulation, the volume of grapes in a fortified
wine is to be calculated exclusive of the grape spirit or brandy (or both)
added to the wine.
21 Use
of geographical indications registered in relation to Australia
(1) For subsection 40F (6) of the Act, if the
description and presentation of wine uses one or more GIs registered in
relation to Australia, the total number of registered GIs and foreign place
names used in the description and presentation of the wine must be three or
less.
Note Subsection 4 (1) of the Act
defines registered geographical indication to mean a geographical
indication included in Part 1 of the Register kept under section 40ZC of the
Act. Subsection 40ZD (2) of the Act requires Part 1 of the Register
to include particulars of any region or locality in relation to which a geographical
indication is determined.
One registered GI
(2) If the description and presentation of the wine:
(a) uses one GI registered in relation to
Australia; and
(b) does not use a GI registered in relation to
another country; and
(c) does not use a foreign place name;
at least 850ml/L of the wine must have been obtained from grapes
grown in the region or locality in Australia in relation to which the GI is
registered.
Two or three registered GIs
(3) If the description and presentation of the wine:
(a) uses two or three registered GIs (at least
one of which is registered in relation to Australia); and
(b) does not use a foreign place name;
the wine, and the description and presentation, must meet the
requirements of subregulation (4).
(4) For subregulation (3):
(a) in total, at least 950ml/L of the wine must
have been obtained from grapes grown in the regions or localities in relation
to which those GIs are registered; and
(b) at least 50ml/L of the wine must have been
obtained from each of those regions or localities; and
(c) the description and presentation must set
out the registered GIs in descending order of the proportions of the relevant
grapes in the wine.
Registered GIs used with foreign place names
(5) If the description and presentation of the wine
uses:
(a) at least one GI registered in relation to
Australia; and
(b) at least one foreign place name;
the wine, and the description and presentation, must meet the
requirements of subregulation (6).
(6) For subregulation (5):
(a) in total, at least 950ml/L of the wine must
have been obtained from grapes grown in:
(i) the regions or localities in
relation to which those GIs are registered; and
(ii) the regions or localities
identified by those foreign place names; and
(b) at least 50ml/L of the wine must have been
obtained from each of those regions or localities; and
(c) the description and presentation must set
out the registered GIs and foreign place names in descending order of the
proportions of the relevant grapes in the wine.
General
(7) For this regulation:
(a) a word or term is not to be treated as a
registered GI or a foreign place name, as the case may be, when it appears in
the description and presentation because it is required by another law; and
(b) the volume of grapes in a fortified wine is
to be calculated exclusive of the grape spirit or brandy (or both) added to the
wine.
Example for paragraph (a)
‘Australia’ and the name of a foreign country might appear
in the description and presentation because they are required by regulation 19.
(8) In this regulation:
foreign place name, in relation to wine
goods, means a word or expression that:
(a) is not a registered GI; and
(b) identifies a country, region or locality
(other than Australia) in which the goods originated.
22 Vintages
(1) For subsection 40F
(6) of the Act, if:
(a) wine originating in Australia is made using
grapes that were harvested in more than one vintage; and
(b) the description and presentation of the wine
refers to one or more of those vintages;
the description and presentation of the wine must refer to all of
the vintages in descending order of the proportions of the relevant grapes in
the wine.
(2) In spite of subregulation (1), wine may be described
and presented as being of one vintage if at least 850ml/L of the wine is
obtained from grapes harvested in that vintage.
(3) For the purposes of subregulation (2), the volume of
grapes in a fortified wine is to be calculated exclusive of the grape spirit or
brandy (or both) added to the wine.
Part 4A Applications for determination of Australian GIs
22A Payment
of application fee
(1) An application under section 40R of the Act must be
accompanied by the fee (if any) charged by the Corporation for the making of
the application.
(2) The Corporation way waive the fee.
(3) If the application is not accompanied by the fee,
and the fee is not waived by the Corporation, the application is treated as
having never been made.
Part 5 Criteria for determining Australian GIs
23 Determining
geographical indications
For the purpose of making determinations under
section 40T of the Act, the Geographical Indications Committee is to have
regard to the criteria set out in this Part.
24 Interpretation
In this Part:
region means an area of land that:
(a) may comprise one or more subregions; and
(b) is a single tract of land that is discrete
and homogeneous in its grape growing attributes to a degree that:
(i) is measurable; and
(ii) is less substantial than in a
subregion; and
(c) usually produces at least 500 tonnes of wine
grapes in a year; and
(d) comprises at least 5 wine grape vineyards of
at least 5 hectares each that do not have any common ownership, whether or
not it also comprises 1 or more vineyards of less than 5 hectares; and
(e) may reasonably be regarded as a region.
subregion means an area of land that:
(a) is part of a region; and
(b) is a single tract of land that is discrete
and homogeneous in its grape growing attributes to a degree that is
substantial; and
(c) usually produces at least 500 tonnes of wine
grapes in a year; and
(d) comprises at
least 5 wine grape vineyards of at least 5 hectares each that do not have any
common ownership, whether or not it also comprises 1 or more vineyards of less
than 5 hectares; and
(e) may reasonably be regarded as a subregion.
wine grape vineyard means a single parcel of
land that:
(a) is planted with wine grapes; and
(b) is operated as a single entity by:
(i) the owner; or
(ii) a manager on behalf of the owner
or a lessee, irrespective of the number of lessees.
zone means an area of land that:
(a) may comprise one or more regions; or
(b) may reasonably be regarded as a zone.
25 Criteria
for determining geographical indications
For the purposes of subsection 40T (2) of the Act,
the Committee is to have regard to the following criteria:
(a) whether the area falls within the definition
of a subregion, a region, a zone or any other area;
(b) the history of the founding and development
of the area, ascertained from local government records, newspaper archives,
books, maps or other relevant material;
(c) the existence in relation to the area of
natural features, including rivers, contour lines and other topographical
features;
(d) the existence in relation to the area of
constructed features, including roads, railways, towns and buildings;
(e) the boundary of the area suggested in the
application to the Committee under section 40R;
(f) ordinance survey map grid references in
relation to the area;
(g) local government boundary maps in relation to
the area;
(h) the existence
in relation to the area of a word or expression to indicate that area,
including:
(i) any
history relating to the word or expression; and
(ii) whether, and to what extent, the
word or expression is known to wine retailers beyond the boundaries of the
area; and
(iii) whether, and to what extent, the
word or expression has been traditionally used in the area or elsewhere; and
(iv) the appropriateness of the word or
expression;
(i) the degree of discreteness and homogeneity
of the proposed geographical indication in respect of the following attributes:
(i) the geological formation of the
area;
(ii) the degree to which the climate of
the area is uniform, having regard to the temperature, atmospheric pressure,
humidity, rainfall, number of hours of sunshine and any other weather
conditions experienced in the area throughout the year;
(iii) whether the date on which
harvesting a particular variety of wine grapes is expected to begin in the area
is the same as the date on which harvesting grapes of the same variety is
expected to begin in neighbouring areas;
(iv) whether part or all of the area is
within a natural drainage basin;
(v) the availability of water from an
irrigation scheme;
(vi) the elevation of the area;
(vii) any plans for the development of
the area proposed by Commonwealth, State or municipal authorities;
(viii) any relevant traditional divisions
within the area;
(ix) the history of grape and wine
production in the area.
Note In determining a geographical
indication under subsection 40Q (1) of the Act, the Committee is not prohibited
under the Act from having regard to any other relevant matters.
Part 6 Objection
to determination of Australian GI based on pre‑existing trade mark rights
Division 1 General
28 Definition
for Part 6
In this Part:
Registrar means the Registrar of Trade Marks.
29 Parties
to send copies of evidence to each other
Evidence in relation to proceedings under this Part
is not taken to be validly filed unless the party filing the evidence:
(a) gives a copy of the evidence to each other
party; and
(b) includes, with the evidence being filed, a
statement setting out the date, place and manner in which the copy was given to
each other party.
Note In some proceedings there may only
be one party.
30 Costs
The Registrar is not entitled to make an order for
costs in proceedings mentioned in this Part.
31 How
fees are to be paid (Act s 40RC and s 40RE)
For subsections
40RC (5) and 40RE (2) of the Act, a fee imposed under this Part must
be paid to the Registrar.
32 Note Regulation 32
reserved for future use.
Division 2 Consideration of objections
33 Application
of Division 2 (Act s 40RC)
For subsection 40RC (5) of the Act, this
Division applies in relation to the making of a decision under
subsection 40RC (2) of the Act.
34 Definition
for Division 2
In this Division:
party, in relation to proceedings mentioned
in this Division, means either of the following:
(a) if an application was made for the
determination of the proposed GI under section 40R of the Act — the
applicant;
(b) a person who makes an objection under
paragraph 40RA (2) (b) of the Act.
36 Evidence
After notifying the Geographical Indications
Committee, the Registrar must send each party a notice that:
(a) gives the name and address of the other
party; and
(b) invites the party to file evidence in
relation to a decision about the matter; and
(c) states that any evidence must be filed 3
months or less from the date of the notice.
37 Evidence
in answer
If a person files evidence in response to a notice
sent under regulation 36, the Registrar must send the other party a notice
that:
(a) invites the party to file evidence in
answer; and
(b) states that
evidence in answer must be filed 2 months or less from the date of the
notice sent under this regulation, or any longer period that the Registrar of
Trade Marks thinks is appropriate under the circumstances.
Note In some proceedings there may only
be one party.
38 Request
for hearing
(1) Any party may, no more than 1 month after the
end of the period given under paragraph 37 (b) for the acceptance of
evidence in answer, ask the Registrar to conduct a hearing.
(2) The Registrar must agree to a request made under
subregulation (1).
39 New
evidence
(1) At any time before the Registrar makes a decision
about an objection to a proposed GI, but after the end of a period specified by
the Registrar for the filing of evidence, a party may apply to the Registrar,
in writing, to file new evidence.
(2) An application must
include a statement:
(a) describing
the new evidence; and
(b) giving the reasons why the new evidence was
not filed within the specified period.
(3) If, after considering the application, the Registrar
decides that it is reasonable to allow the filing of the new evidence, he or
she must set a date by which the new evidence must be filed.
(4) If the new evidence is filed by the date mentioned
in subregulation (3), the Registrar must send a notice to the other party
telling them that the new evidence is filed and setting a reasonable period for
the party to file evidence in answer to it.
Note In some proceedings there may only
be one party.
40 Decision
by Registrar
(1) The Registrar must, as soon as is practicable after
the last day set for evidence to be filed, make a decision under
subsection 40RC (2) of the Act by considering:
(a) the notice published under
subsection 40RA (2) of the Act and any related documents; and
(b) the documents filed by the parties; and
(c) any other matter that the Registrar thinks
is relevant.
(2) If a hearing is held, the Registrar must also invite
submissions from the parties and consider the submissions.
41 No
decision if trade mark subject to removal or cancellation proceedings
The Registrar must not make a decision under
subsection 40RC (2) of the Act if the registered trade mark concerned
is the subject of removal or cancellation proceedings.
42 Withdrawal
of objection
If a person
objecting to a proposed GI:
(a) does not file
evidence within the period mentioned in paragraph 36 (c); or
(b) withdraws the notice of objection before the
Registrar makes a decision about the objection;
the Registrar must decide that the ground of the objection is not
made out.
Note The Registrar must notify the parties and
the Geographical Indications Committee about his or her decision: see
subsection 40RD (1) of the Act.
43 Fees
(1) In proceedings mentioned in this Division, the fees
specified in column 3 of an item in the following table are payable in respect
of a matter specified in column 2 of the item.
(2) The Registrar must not deal with a matter until the
fee for the matter is paid.
|
Item
|
Matter
|
Fee ($)
|
|
1
|
Filing a notice of objection in response to an invitation
under paragraph 40RA (2) (b) of the Act
|
500
|
|
3
|
Applying to file new evidence under
subregulation 39 (1)
|
100
|
|
4
|
Filing evidence under regulation 36, 37 or 39 (that is,
evidence in support, evidence in answer or new evidence)
|
375
|
|
5
|
Requesting a hearing under subregulation 38 (1)
|
500
|
|
6
|
Attending a hearing
|
500 per day or part of a day
|
(3) If a person requests a
hearing and pays the fee mentioned in item 5 of the table in respect of the
hearing, the fee in item 6 of the table applies to the person only for the
second and any subsequent day of the hearing.
Division 3 Application for decision that ground of objection no longer
exists
44 Application
of Division 3 (Act s 40RE)
For subsection 40RE (2) of the Act, this
Division applies in relation to the making of a decision under
subsection 40RE (1).
45 Definition
for Division 3
In this Division:
party, in relation to proceedings mentioned
in this Division, means any of the following:
(a) the person who makes an application under
paragraph 40RE (1) (b) of the Act;
(b) the owner of the trade mark concerned;
(c) if:
(i) an application for the
determination of the proposed GI to which the objection relates was made under
section 40R of the Act; and
(ii) the applicant for the
determination is not the person mentioned in paragraph (a);
the applicant for the determination.
46 Notice
of application
If the Registrar receives an application under
paragraph 40RE (1) (b) of the Act, the Registrar must notify the
Geographical Indications Committee in writing of the receipt and terms of the
application.
47 Evidence
After notifying the Geographical Indications
Committee, the Registrar must send each party a notice (an invitation
notice) that:
(a) gives the name and address of each other
party; and
(b) invites the party to file evidence in
relation to a decision about the matter; and
(c) states that any evidence must be filed
3 months or less after the date of the invitation notice.
49 Evidence
in answer
If a person files evidence in response to an
invitation notice sent under regulation 47, the Registrar must send each
party a notice that:
(a) invites the party to file evidence in answer
to another party’s evidence; and
(b) states that evidence in answer must be filed
2 months or less from the date of the notice sent under this regulation,
or any longer period that the Registrar thinks is appropriate under the
circumstances.
50 Request
for hearing
(1) Any party may, no more than 1 month after the
end of the period given under paragraph 49 (b) for the acceptance of
evidence in answer, ask the Registrar to conduct a hearing.
(2) The Registrar must agree to a request made under
subregulation (1).
51 New
evidence
(1) At any time before the Registrar makes a decision
about whether a ground of objection to a proposed GI no longer exists, but
after the end of a period specified by the Registrar for the filing of
evidence, a party may apply to the Registrar, in writing, to file new evidence.
(2) An application must include a statement:
(a) describing the new evidence; and
(b) giving the reasons why the new evidence was
not filed within the specified period.
(3) If, after considering the application, the Registrar
decides that it is reasonable to allow the filing of the new evidence, he or
she must set a date by which the new evidence must be filed.
(4) If the new evidence is filed by the date mentioned
in subregulation (3), the Registrar must send a notice to the other
parties telling them that the new evidence is filed and setting a reasonable
period for the parties to file evidence in answer to it.
52 Decision
by Registrar
(1) The Registrar must, as soon as is practicable after
the last day set for evidence to be filed, make a decision under
subsection 40RE (1) of the Act by considering:
(a) the documents filed by the parties; and
(b) any other matter that the Registrar thinks is
relevant.
(2) If a hearing is held, the Registrar must also invite
submissions from the parties and consider the submissions.
(3) The Registrar must not make a decision under
subsection 40RE (1) of the Act if the trade mark concerned is the subject
of removal or cancellation proceedings.
(4) The Registrar must decide that the ground of
objection continues to exist if no party files evidence within the period
mentioned in paragraph 47 (c).
53 Withdrawal
of application
(1) If the applicant under
paragraph 40RE (1) (b) of the Act withdraws the application
before the Registrar makes a decision under this Division, the Registrar must
continue the proceedings if requested to do so by another party.
(2) However, if no party makes a request to continue,
the Registrar must decide that the ground of objection continues to exist.
54 Notice
of decision
(1) The Registrar must, in writing, inform the
Geographical Indications Committee and each party of the Registrar’s decision.
(2) After receiving notice of a decision from the
Registrar, the Presiding Member of the Committee must publish a notice:
(a) setting out the proposed GI; and
(b) stating that a decision of the Registrar has
been made in relation to the proposed GI; and
(c) setting out the terms of the decision.
(3) The notice under subregulation (2) is to be
published in the manner that the Committee thinks appropriate.
55 Fees
for claim that ground of objection no longer exists (Act s 40RE)
(1) In proceedings mentioned in this Division, the fees
specified in column 3 of an item in the following table are payable in respect
of a matter specified in column 2 of the item.
(2) The Registrar must not
deal with a matter until the fee for the matter is paid.
|
Item
|
Matter
|
Fee ($)
|
|
1
|
Making an application for a decision under
paragraph 40RE (1) (b) of the Act
|
500
|
|
3
|
Applying to file new evidence under regulation 51
|
100
|
|
4
|
Filing evidence under regulation 47, 49 or 51 (that
is, evidence in support, evidence in answer or new evidence)
|
375
|
|
5
|
Requesting a hearing under regulation 50
|
500
|
|
6
|
Attending a hearing
|
500 per day or part of a day
|
(3) If a person requests a hearing and pays the fee
mentioned in item 5 of the table in respect of the hearing, the fee in item 6
of the table applies to the person only for the second and any subsequent day
of the hearing.
Part 6A Determination
of foreign GIs and translations of foreign GIs
Division 1 Applications for
determinations
56 Applications
for determinations
(1) A person may apply in writing to the Geographical
Indications Committee for the determination of a GI in relation to a foreign
country or a region or locality in a foreign country.
(2) A person may apply in writing to the Committee for
the determination of a translation of a GI in relation to a foreign country or
a region or locality in a foreign country.
(3) An application under subregulation (2) for the
determination of a translation of a geographical indication may be made:
(a) after the GI is registered; or
(b) at the same time as an application under
subregulation (1) for determination of the GI.
(4) An application under subregulation (1) or (2)
must be accompanied by the fee (if any) charged by the Corporation for the
making of the application.
(5) The Corporation may waive the fee.
(6) If the application is not accompanied by the fee,
and the fee is not waived by the Corporation, the application is treated as
having never been made.
Division 2 Objections based on pre‑existing trade mark rights
57 Notice
to be given of proposed foreign GI or translation of foreign GI
(1) The Presiding Member of the Geographical
Indications Committee must publish a notice if:
(a) an application has been made under
subregulation 56 (1) for the determination of a GI (the proposed
item); or
(b) an application has been made under
subregulation 56 (2) for the determination of a translation of a GI
(the proposed item).
(2) The notice must:
(a) set out the proposed item; and
(b) invite persons to make written objections to
the Registrar of Trade Marks in relation to the proposed item on a ground set
out in regulation 58; and
(c) invite the objections to be made within the
period of not less than 1 month stated in the notice.
(3) If applications for determination of a GI and
translation of the GI are made at the same time, the Presiding Member may
publish a single notice in relation to both applications.
58 Grounds
of objection to determination of foreign GI or translation of foreign GI
Registered owner of a registered trade mark
(1) The registered owner of a registered trade mark may
object to the determination of a proposed item on one of the following grounds:
(a) that the trade mark consists of a word,
expression or other indication that is identical to the proposed item;
(b) that:
(i) the trade mark consists of a word,
expression or other indication; and
(ii) the proposed item is likely to
cause confusion with that word, expression or other indication;
(c) that:
(i) the trade mark contains a word,
expression or other indication; and
(ii) the proposed item is likely to
cause confusion with that word, expression or other indication; and
(iii) the owner has trade mark rights in
that word, expression or other indication.
(2) The owner may object on the ground specified in
paragraph (1) (c) even if there are conditions or limitations entered
on the Register of Trade Marks suggesting that the owner does not have trade
mark rights to that word, expression or other indication.
Trade mark pending
(3) If a person has an application
pending for the registration of a trade mark under the Trade Marks Act 1995,
the person may object to the determination of a proposed item on one of the
following grounds:
(a) that:
(i) the application was made in good
faith; and
(ii) the trade mark consists of a word,
expression or other indication that is identical to the proposed item; and
(iii) it appears that the requirements
under the Trade Marks Act 1995 for accepting an application for
registration of a trade mark would be satisfied in respect of the trade mark
applied for;
(b) that:
(i) the application was made in good
faith; and
(ii) the trade mark consists of a word,
expression or other indication; and
(iii) the proposed item is likely to
cause confusion with that word, expression or other indication; and
(iv) it
appears that the requirements under the Trade Marks Act 1995 for
accepting an application for registration of a trade mark would be satisfied in
respect of the trade mark applied for;
(c) that:
(i) the application was made in good
faith; and
(ii) the trade mark contains a word,
expression or other indication; and
(iii) the proposed item is likely to
cause confusion with that word, expression or other indication; and
(iv) it appears that the requirements
under the Trade Marks Act 1995 for accepting an application for
registration of a trade mark would be satisfied in respect of the trade mark
applied for; and
(v) after registration, the applicant
would have trade mark rights in the word, expression or other indication.
Trade mark not registered
(4) If a person claims to have trade mark rights in a
trade mark that is not registered, the person may object to the determination
of a proposed item on one of the following grounds:
(a) that:
(i) the trade mark consists of a word,
expression or other indication that is identical to the proposed item; and
(ii) the person has trade mark rights
in that word, expression or other indication; and
(iii) the rights were acquired through
use in good faith;
(b) that:
(i) the trade mark consists of or
contains a word, expression or other indication; and
(ii) the proposed item is likely to
cause confusion with that word, expression or other indication; and
(iii) the person has trade mark rights
in that word, expression or other indication; and
(iv) the rights were acquired through
use in good faith.
Common use
(5) A person may object to the determination of a
proposed item on the ground that the proposed item is used in Australia:
(a) as the common name of a type or style of
wine; or
(b) as the name of a variety of grapes.
Division 3 Consideration of objections
59 Application
of Division 3
This Division applies if:
(a) the Registrar of Trade Marks receives an
objection in relation to the proposed item on a ground that is set out in
regulation 58; and
(b) the objection is received within the period
stated in the notice under regulation 57.
60 Definition
for Division 3
In this Division:
party, in relation to proceedings mentioned
in this Division, means either of the following:
(a) the applicant under regulation 56 for a
determination;
(b) a person who makes an objection under
paragraph 57 (2) (b).
61 Notice
of objection
The Registrar of Trade Marks must notify the
Geographical Indications Committee in writing of the receipt and terms of the
objection.
62 Evidence
After notifying the Geographical Indications
Committee, the Registrar of Trade Marks must send each party a notice that:
(a) gives the name and address of the other
party; and
(b) invites the party to file evidence in
relation to a decision about the matter; and
(c) states that any evidence must be filed
3 months or less from the date of the notice.
63 Evidence
in answer
If a person files evidence in response to a notice
sent under regulation 62, the Registrar of Trade Marks must send the other
party a notice that:
(a) invites the party to file evidence in
answer; and
(b) states that evidence in answer must be filed
2 months or less from the date of the notice sent under this regulation,
or any longer period that the Registrar of Trade Marks thinks is appropriate
under the circumstances.
64 Request
for hearing
(1) A party may, no more than 1 month after the end
of the period given under paragraph 63 (b) for the acceptance of
evidence in answer, ask the Registrar of Trade Marks to conduct a hearing.
(2) The Registrar of Trade Marks must agree to a request
made under subregulation (1).
65 New
evidence
(1) At any time before the Registrar of Trade Marks
makes a decision about an objection to a proposed item, but after the end of a
period specified by the Registrar of the Trade Marks for the filing of
evidence, a party may apply to the Registrar of Trade Marks, in writing, to
file new evidence.
(2) An application must include a statement:
(a) describing
the new evidence; and
(b) giving the reasons why the new evidence was
not filed within the specified period.
(3) If, after considering the application, the Registrar
of Trade Marks decides that it is reasonable to allow the filing of the new
evidence, he or she must set a date by which the new evidence must be filed.
(4) If the new evidence is filed by the date mentioned
in subregulation (3), the Registrar of Trade Marks must send a notice to
the other party telling them that the new evidence is filed and setting a
reasonable period for the party to file evidence in answer to it.
66 Parties
to send copies of evidence to each other
Evidence in relation to proceedings under this
Division is not taken to be validly filed unless the party filing the evidence:
(a) gives a copy of the evidence to the other
party; and
(b) includes, with the evidence being filed, a
statement setting out the date, place and manner in which the copy was given to
the other party.
67 Decision
by Registrar of Trade Marks
(1) The Registrar of Trade Marks must, as soon as
practicable after the last day set for evidence to be filed, make a decision in
writing whether the ground of objection is or is not made out by considering:
(a) the notice published under
regulation 57 and any related documents; and
(b) the documents filed by the parties; and
(c) any other matter that the Registrar of Trade
Marks thinks is relevant.
(2) If a hearing is held, the Registrar of Trade Marks
must also invite submissions from the parties and consider the submissions.
(3) The Registrar of Trade Marks must not make a
decision under subregulation (1) if the registered trade mark concerned is
the subject of removal or cancellation proceedings.
(4) The Registrar of Trade Marks must decide that the
ground of the objection is not made out if:
(a) the person objecting to the proposed item
does not file any evidence within the period mentioned in paragraph
62 (c); or
(b) the person objecting to the proposed item
withdraws the notice of objection before the Registrar of Trade Marks makes a
decision about the objection.
68 Recommendation
by Registrar of Trade Marks to determine foreign GI or translation of foreign
GI despite objection being made out
(1) If:
(a) the Registrar of Trade Marks decides that
the ground of objection is made out; and
(b) the Registrar of Trade Marks is satisfied
that it is reasonable in the circumstances to recommend to the Geographical
Indications Committee that the proposed item be determined despite the
objection having been made out;
the Registrar of Trade Marks may make that
recommendation to the Committee in writing.
Note 1 For example, it may be reasonable
for the Registrar of Trade Marks to make such a recommendation if the Registrar
of Trade Marks is satisfied that the proposed item was in use in Australia
before the trade mark rights arose.
Note 2 If a recommendation is made
under subregulation (1), the Committee may determine a GI or a translation
of a GI — see subregulation 86 (5).
(2) In determining whether it is reasonable in the
circumstances to make the recommendation, the Registrar of Trade Marks must
have regard to Australia’s international obligations.
69 Notice
of decision
(1) The Registrar of Trade Marks must, in writing,
inform the Geographical Indications Committee and each party of the Registrar
of Trade Marks’s decision in relation to the objection under regulation 67
and any recommendation that has been made under regulation 68.
(2) After receiving notice of a decision, the Presiding
Member of the Committee must publish a notice:
(a) setting out the proposed item; and
(b) stating that a decision of the Registrar of
Trade Marks has been made in relation to the proposed item; and
(c) setting out the terms of the decision made
under regulation 67 and any recommendation made under regulation 68
in relation to the proposed item.
(3) The notice under subregulation (2) is to be
published in the manner that the Committee thinks appropriate.
70 Fees
for Division 3 proceedings
(1) In proceedings mentioned in this Division, the fees
specified in column 3 of an item in the following table are payable in
respect of a matter specified in column 2 of the item.
(2) A fee imposed by subregulation (1) must be paid
to the Registrar of Trade Marks.
(3) The Registrar of Trade Marks
must not deal with a matter until the fee for the matter is paid.
|
Item
|
Matter
|
Fee
|
|
1
|
Filing a notice of objection in response to an invitation
under paragraph 57 (2) (b)
|
$500
|
|
2
|
Applying to file new evidence under
subregulation 65 (1)
|
$100
|
|
3
|
Filing evidence under regulation 62, 63 or 65 (that is,
evidence in support, evidence in answer or new evidence)
|
$375
|
|
4
|
Requesting a hearing under subregulation 64 (1)
|
$500
|
|
5
|
Attending a hearing
|
$500 per day or part of a day
|
(4) If a person requests a hearing and pays the fee
mentioned in item 4 of the table in respect of the hearing, the fee in item 5
of the table applies to the person only for the second and any subsequent day
of the hearing.
71 Costs
The Registrar of Trade Marks is not entitled to
make an order for costs in proceedings mentioned in this Division.
Division 4 Decision that ground of objection no longer exists
72 Definition
for Division 4
In this Division:
party, in relation to proceedings mentioned
in this Part, means any of the following:
(a) the person who makes an application under
regulation 73;
(b) if the objection was made on a ground in
subregulation 58 (1), (3) or (4) — the owner of the trade mark
concerned;
(c) if the objection was made on a ground in
subregulation 58 (5) — the person who made the objection;
(d) if the applicant for the determination of the
proposed item to which the objection relates is not the person mentioned in
paragraph (a) — the applicant for the determination.
73 Application
for decision
If the Registrar of Trade Marks has made a decision
under regulation 67 that a ground of objection has been made out, a person
may apply in writing to the Registrar of Trade Marks for a decision that
circumstances have changed since that decision was made, such that the ground
of objection no longer exists.
74 Notice
of application
If the Registrar of Trade Marks receives an
application under regulation 73, the Registrar of Trade Marks must notify
the Geographical Indications Committee in writing of the receipt and terms of
the application.
75 Evidence
After notifying the Geographical Indications
Committee, the Registrar of Trade Marks must send each party a notice that:
(a) gives the name and address of each other
party; and
(b) invites the party to file evidence in
relation to a decision about the matter; and
(c) states that any evidence must be filed
3 months or less after the date of the notice.
76 Evidence
in answer
If a person files evidence in response to a notice
sent under regulation 75, the Registrar of Trade Marks must send each
party a notice that:
(a) invites the party to file evidence in answer
to another party’s evidence; and
(b) states that evidence in answer must be filed
2 months or less from the date of the notice sent under this regulation,
or any longer period that the Registrar of Trade Marks thinks is appropriate
under the circumstances.
77 Request
for hearing
(1) A party may, no more than 1 month after the end
of the period given under paragraph 76 (b) for the acceptance of
evidence in answer, ask the Registrar of Trade Marks to conduct a hearing.
(2) The Registrar of Trade Marks must agree to a request
made under subregulation (1).
78 New
evidence
(1) At any time before the Registrar of Trade Marks
makes a decision about whether a ground of objection to a proposed item no
longer exists, but after the end of a period specified by the Registrar of
Trade Marks for the filing of evidence, a party may apply to the Registrar of
Trade Marks, in writing, to file new evidence.
(2) An application must include a statement:
(a) describing the new evidence; and
(b) giving the reasons why the new evidence was
not filed within the specified period.
(3) If, after considering the application, the Registrar
of Trade Marks decides that it is reasonable to allow the filing of the new
evidence, he or she must set a date by which the new evidence must be filed.
(4) If the new evidence is filed by the date mentioned
in subregulation (3), the Registrar of Trade Marks must send a notice to
the other parties telling them that the new evidence is filed and setting a
reasonable period for the parties to file evidence in answer to it.
79 Parties
to send copies of evidence to each other
Evidence in relation to proceedings under this
Division is not taken to be validly filed unless the party filing the evidence:
(a) gives a copy of the evidence to each other
party; and
(b) includes, with the evidence being filed, a
statement setting out the date, place and manner in which the copy was given to
each other party.
80 Decision
by Registrar of Trade Marks
(1) The Registrar of Trade Marks must, as soon as
practicable after the last day set for evidence to be filed, decide whether the
ground of objection no longer exists by considering:
(a) the documents filed by the parties; and
(b) any other matter that the Registrar of Trade
Marks thinks is relevant.
(2) If a hearing is held, the Registrar of Trade Marks
must also invite submissions from the parties and consider the submissions.
(3) The Registrar of Trade Marks must not make a
decision under subregulation (1) if the registered trade mark concerned is
the subject of removal or cancellation proceedings.
(4) The Registrar of Trade Marks must decide that the
ground of objection continues to exist if no party files evidence within the
period mentioned in paragraph 75 (c).
81 Withdrawal
of application
(1) If the applicant under regulation 73 withdraws
the application before the Registrar of Trade Marks makes a decision under this
Division, the Registrar of Trade Marks must continue the proceedings if
requested to do so by another party.
(2) However, if no party makes a request to continue,
the Registrar of Trade Marks must decide that the ground of objection continues
to exist.
82 Notice
of decision
(1) The Registrar of Trade Marks must, in writing,
inform the Geographical Indications Committee and each party of the Registrar
of Trade Marks’s decision.
(2) After receiving notice of a decision from the
Registrar of Trade Marks, the Presiding Member of the Committee must publish a
notice:
(a) setting out the proposed item; and
(b) stating that a decision of the Registrar has
been made in relation to the proposed item; and
(c) setting out the terms of the decision.
(3) The notice under subregulation (2) is to be
published in the manner that the Committee thinks appropriate.
83 Fees
for Division 4 proceedings
(1) In proceedings mentioned in this Division, the fees
specified in column 3 of an item in the following table are payable in
respect of a matter specified in column 2 of the item.
(2) A fee imposed by subregulation (1) must be paid
to the Registrar of Trade Marks.
(3) The Registrar of Trade
Marks must not deal with a matter until the fee for the matter is paid.
|
Item
|
Matter
|
Fee
|
|
1
|
Making an application for a decision under
regulation 73
|
$500
|
|
2
|
Applying to file new evidence under regulation 78
|
$100
|
|
3
|
Filing evidence under regulation 75, 76 or 78 (that
is, evidence in support, evidence in answer or new evidence)
|
$375
|
|
4
|
Requesting a hearing under regulation 77
|
$500
|
|
5
|
Attending a hearing
|
$500 per day or part of a day
|
(4) If a person requests a hearing and pays the fee
mentioned in item 4 of the table in respect of the hearing, the fee in item 5
of the table applies to the person only for the second and any subsequent day
of the hearing.
84 Costs
The Registrar of Trade Marks is not entitled to
make an order for costs in proceedings mentioned in this Division.
Division 5 Appeals
85 Decisions
appellable to Federal Court
For subsection 40ZAR (1) of the Act, decisions of
the Registrar of Trade Marks made under the following provisions are
prescribed:
(a) subregulation 67 (1) (a decision
that a ground of objection is or is not made out);
(b) subregulation 68 (1) (a
recommendation that a proposed item be determined or a refusal to make such a
recommendation);
(c) subregulation 80 (1) (a decision
that a ground of objection no longer exists or a refusal to make such a
decision).
Division 6 Determinations of foreign GIs and translations of foreign GIs
by Geographical Indications Committee
86 When
Geographical Indications Committee may proceed to make a determination
(1) The Geographical Indications Committee may determine
a GI or translation of a GI if no objection to which Division 3 applies
was made to the proposed item within the period stated in the notice under
regulation 57 setting out the proposed item.
(2) If an objection was made to which Division 3
applies, the Committee:
(a) must not proceed to make a determination
until the requirements of regulation 69 have been complied with; and
(b) may only make a determination in the
circumstances set out in the following subregulations.
Ground of objection not made out
(3) The Committee may determine a GI or translation of
a GI that was the subject of a decision under regulation 67 if:
(a) all appeals against, or reviews of, the
decision in relation to the proposed item have been finalised; and
(b) the decision standing after the appeals and
reviews have been finalised is that a ground of objection has not been made out
in relation to the proposed item.
Ground of objection made out and person agrees to determination
being made
(4) The Committee may determine a GI or translation of a
GI that is the subject of a decision that a ground of objection has been made
out, if the person who objected to the determination of the proposed item has
agreed, by notice in writing given to the Committee, to the determination of
the proposed item.
Ground of objection made out and a recommendation is made under
regulation 68
(5) The Committee may determine a GI or translation of
a GI that is the subject of a decision that a ground of objection has been made
out, if:
(a) a recommendation has been made to the
Committee under regulation 68 that the proposed item should be determined despite
the ground of objection having been made out; and
(b) all appeals against, or reviews of, the
decision to make that recommendation have been finalised; and
(c) the decision standing after the appeals and
reviews have been finalised is that the recommendation is made.
Ground of objection made out and decision made under regulation 80
(6) The Committee may determine a GI or translation of
a GI that is the subject of a decision that a ground of objection has been made
out, if:
(a) a decision has been made under
regulation 80 that the ground of objection no longer exists; and
(b) all appeals against, or reviews of, the
decision that the ground no longer exists have been finalised; and
(c) the decision standing after the appeals and
reviews have been finalised is that the ground no longer exists.
No determination of translation without corresponding GI
(7) However, the Committee must not determine a
translation of a GI if:
(a) the application for determination of the
translation under subregulation 56 (2) was made at the same time as an
application for determination of the GI was made under
subregulation 56 (1); and
(b) the Committee is not permitted under this
regulation to proceed to determine the GI.
87 Consultation
by Committee
In determining a GI or translation of a GI, the
Committee may consult any organisation or person it thinks appropriate.
88 Determining
foreign GIs
(1) In determining a GI, the Committee must:
(a) identify in the determination the boundaries
of the area or areas in the region or locality to which the determination
relates; and
(b) determine the indication to be used to
indicate that area or those areas; and
(c) determine any conditions of use that are to
be applicable to the GI.
(2) The Committee must not:
(a) determine a GI that is different to the GI
proposed in the application under subregulation 56 (1); or
(b) determine boundaries different to those
proposed in the application.
(3) The Committee must have regard to the following
criterion:
(a) whether the GI is protected by the laws of
the country where the area is located.
(4) The Committee may have regard to any other matter it
considers relevant.
(5) However, the Committee must not consider any
submission to the extent that the submission asserts a trade mark right in
respect of the proposed GI.
89 Determining
translations
(1) In determining a translation of a GI, the Committee
must:
(a) identify the GI to which the translation
relates; and
(b) determine the translation to be used; and
(c) determine any conditions of use that are to
be applicable to the translation.
(2) The Committee must not determine a different
translation to the translation that was proposed in the application under
subregulation 56 (2).
(3) The Committee must have regard to the following
criterion:
(a) the translation must convey or evoke the
significance of the GI to which it relates.
(4) The Committee may have regard to any other matter it
considers relevant.
(5) However, the Committee must not consider any
submission to the extent that the submission asserts a trade mark right in
respect of the proposed translation.
90 Interim
determination
(1) A determination by the Geographical Indications
Committee under regulation 88 or regulation 89 is to be an interim
determination in the first instance.
(2) An interim determination does not have effect.
91 Publication
of notice of interim determination
(1) The Presiding Member of the Committee must publish a
notice, stating that the interim determination has been made and setting out
the terms of the determination, in any manner that the Committee thinks
appropriate.
(2) The notice must invite persons to make written
submissions to the Committee in relation to the determination within a period
of not less than 1 month that is stated in the notice.
(3) If interim determinations are made of both a GI and
a translation of the GI, the Presiding Member may publish a single notice in
relation to both determinations.
92 Final
determination
After considering any submissions made to it, the
Geographical Indications Committee may make a final determination.
93 Publication
of notice of final determination
(1) The Presiding Member of the Geographical Indications
Committee must publish a notice, stating that a final determination has been
made and setting out the terms of the determination, in any manner that the
Committee thinks appropriate.
(2) The notice must include a statement to the effect
that:
(a) subject to the Administrative Appeals
Tribunal Act 1975, application may be made, by or on behalf of any person
whose interests are affected by the determination, to the Administrative
Appeals Tribunal for review of the determination; and
(b) unless subsection 28 (4) of that
Act applies, application may be made in accordance with section 28 of that
Act by or on behalf of that person for a statement in writing setting out the
findings on material questions of fact, referring to the evidence or other
material on which those findings were based and giving the reasons for the
determination; and
(c) if a decision has been made under
regulation 67, regulation 68 or regulation 80 before the final
determination:
(i) no application to the
Administrative Appeals Tribunal may be made in respect of that decision; and
(ii) an appeal lies to the Federal
Court in respect of that decision under regulation 85.
(3) If final determinations are made of both a GI and a
translation of the GI, the Presiding Member may publish a single notice in
relation to both determinations.
(4) Any failure to comply with subregulation (2) in
relation to a determination does not affect the validity of the determination.
94 Review
of final determination
(1) Application may be
made to the Administrative Appeals Tribunal for review of a final
determination.
Note Under regulation 85, an appeal
lies to the Federal Court from a decision under regulation 67, 68 or 80.
(2) Despite paragraph 29 (1) (d) and
subsection 29 (2) of the Administrative Appeals Tribunal Act 1975,
an application to the Tribunal for review of a final determination must be made
within 28 days after notice of the determination is published in
accordance with regulation 93.
(3) Despite subsection 29 (8) of the Administrative
Appeals Tribunal Act 1975, an application under subsection 29 (7) of
that Act in respect of a final determination must be made before the time fixed
by subregulation (2) ends.
95 Date
of effect of final determination
(1) The Presiding Member of the Geographical
Indications Committee must give a copy of the final determination to the
Registrar so that particulars of the determination can be included in the
Register:
(a) if an application is made to the
Administrative Appeals Tribunal under regulation 94 for review of the
determination — as soon as practicable after the decision of the Tribunal
on the review is given; or
(b) otherwise — as soon as practicable after
the 28th day after notice of the determination is published in accordance with
regulation 93.
(2) When the Presiding Member gives a copy of a final
determination to the Registrar, the Presiding Member must also give a copy to
the Chairperson of the Corporation.
(3) A final determination of the Committee takes effect
on the day on which particulars of the determination are included in the
Register.
(4) However, a final
determination in relation to a translation of a GI does not take effect, and
particulars must not be included in the Register, if the GI to which it relates
is not included in the Register.
Division 7 Omission of foreign GIs and translations of foreign GIs
Subdivision 1 Omission for
non-use or loss of significance
96 Definition for Subdivision 1
In this Subdivision:
item proposed to be omitted means the entry
in the Register that an application under regulation 97 relates to, which
may be:
(a) a registered GI in relation to a foreign
country or a region or locality in a foreign country; or
(b) a registered translation of a GI in relation
to a foreign country or a region or locality in a foreign country; or
(c) both a registered GI in relation to a
foreign country or a region or locality in a foreign country and the registered
translation of that GI.
97 Application
for omission of foreign GI or translation of foreign GI
(1) A person may apply to the Geographical Indications
Committee to omit from the Register a GI in relation to a foreign country or a
region or locality in a foreign country, on the ground that the GI is not in
use.
(2) If an application is made to omit a GI from the
Register, and a translation of that GI is included in the Register, the
application is taken to be for omission of both the GI and the translation.
(3) A person may apply to
the Committee to omit a registered translation from the Register
on the ground that the translation no longer conveys or evokes the significance
of the GI for which it was registered.
(4) An application under subregulation (1) or (3)
must be accompanied by the fee (if any) charged by the Corporation for the
making of the application.
(5) The Corporation may waive the fee.
(6) If the application is not accompanied by the fee,
and the fee is not waived by the Corporation, the application is treated as
having never been made.
98 Further
information concerning application
(1) For the purposes of determining the application, the
Committee may, by notice in writing, require the applicant to provide such
further information as the Committee directs, within the period specified in
the notice.
(2) If the applicant does not comply with this
requirement, the application is taken to have been withdrawn.
(3) The notice must include a statement about the effect
of subregulation (2).
99 Notice
by Committee
If the Geographical Indications Committee receives
an application under regulation 97, the Presiding Member of the Committee
must publish a notice in the manner that the Committee thinks appropriate:
(a) setting out the item proposed to be omitted;
and
(b) stating that an application under
regulation 97 has been made; and
(c) inviting persons to make written submissions
to the Committee in relation to the application within the period of not less
than 1 month that is stated in the notice.
100 Determination
by Committee
(1) After considering any submissions made to it in
response to a notice under regulation 99, the Committee must determine
whether to omit the item proposed to be omitted.
Omission of GI
(2) The Committee may, in writing, make a determination
to omit a GI if the Committee is satisfied of the following matters:
(a) that the GI has been registered for more
than 5 years before the date of the notice under regulation 99;
(b) that the GI has not been used during the
3 years before the date of the notice under regulation 99;
(c) that no special circumstances exist in
relation to the country, region or locality indicated by the GI that would
preclude the making of a determination to omit the GI from the Register.
(3) For the purposes of paragraph (2) (b), a GI has not
been used if:
(a) there has not been a production of wine for
commercial use originating in the country, region or locality indicated by the
GI; and
(b) wine originating in the country, region or
locality indicated by the GI has not been described and presented for sale in
Australia using the GI or a registered translation of the GI; and
(c) wine originating in the country, region or
locality indicated by the GI has not been described and presented for sale in
the country of origin using the GI or a registered translation of the GI.
(4) For the purposes of paragraph (2) (c), special
circumstances exist if:
(a) the country, region or locality indicated by
the GI has been affected by fire, drought or some other disaster; and
(b) as a result of
being so affected, there has not been a production of wine for commercial use
originating in the country, region or locality indicated by the GI during the
period of 3 years immediately before the date of the notice under
regulation 99.
Omission of translation of GI
(5) The Committee may, in writing, make a determination
to omit a translation of a GI if the Committee is satisfied that the
translation no longer conveys or evokes the significance of the GI for which it
was registered.
(6) If the application under regulation 97 is for
omission of both a GI and its translation, the Committee may make a
determination to omit the translation without omitting the GI if the Committee
is satisfied of the matters in subregulation (5) in relation to the
translation.
(7) The Committee must make a determination to omit a
translation of a GI if it makes a determination to omit the GI.
101 Notice
of determination
(1) The Presiding Member of the Geographical
Indications Committee must:
(a) give a notice of the Committee’s
determination to the applicant; and
(b) if the determination made is to omit a GI, a
translation of a GI or both a GI and its translation from the Register —
publish a notice setting out the terms of the determination.
(2) The notice under paragraph (1) (b) is to
be published in the manner that the Committee thinks appropriate.
102 AAT
review of a determination
(1) Application may be made to the Administrative Appeals
Tribunal for review of a determination made under regulation 100.
(2) Despite paragraph 29 (1) (d) and
subsection 29 (2) of the Administrative Appeals Tribunal Act 1975,
an application to the Tribunal for review of a determination under regulation 100
must be made within 28 days after notice of the determination is published
in accordance with regulation 101.
(3) Despite subsection 29 (8) of the Administrative
Appeals Tribunal Act 1975, an application under subsection 29 (7) of
that Act in respect of a determination under regulation 100 must be made
before the time fixed by subregulation (2) ends.
103 Date
of effect of determination to omit item
(1) If the determination made by the Geographical
Indications Committee under regulation 100 is a determination to omit a
GI, a translation of a GI or both a GI and its translation from the Register,
the Presiding Member of the Committee must give a copy of the determination to
the Registrar so that particulars of the determination can be omitted from the
Register:
(a) if an application is made to the
Administrative Appeals Tribunal under regulation 102 for review of the
determination — as soon as practicable after the decision of the Tribunal
on the review is given; or
(b) otherwise — as soon as practicable after
the 28th day after notice of the determination is published in accordance with
regulation 101.
(2) When the Presiding Member gives a copy of the
determination to the Registrar, the Presiding Member must also give a copy to
the Chairperson of the Corporation.
(3) The determination of the Committee takes effect on
the day on which particulars of the item or items are omitted from the
Register.
Subdivision 2 Omission because
not protected in country of origin and not used in Australia
104 Application
for omission of foreign GI
(1) A person may apply to the Geographical Indications
Committee to omit from the Register a GI in relation to a foreign country or a
region or locality in a foreign country, on the ground that the GI is not
protected in the country to which it relates and is not in use in Australia.
(2) The application must be accompanied by the fee (if
any) charged by the Corporation for the making of the application.
(3) The Corporation may waive the fee.
(4) If the application is not accompanied by the fee,
and the fee is not waived by the Corporation, the application is treated as
having never been made.
105 Further
information concerning application
(1) For the purposes of determining the application, the
Committee may, by notice in writing, require the applicant to provide such
further information as the Committee directs, within the period specified in
the notice.
(2) If the applicant does not comply with this
requirement, the application is taken to have been withdrawn.
(3) The notice must include a statement about the effect
of subregulation (2).
106 Notice
by Committee
If the Geographical Indications Committee receives
an application under regulation 104, the Presiding Member of the Committee
must publish a notice in the manner that the Committee thinks appropriate:
(a) stating that an application under
regulation 104 has been made and setting out the GI; and
(b) inviting persons to make written submissions
to the Committee in relation to the application within the period of not less
than 1 month that is stated in the notice.
107 Determination
by Committee
(1) After considering any submissions made to it in
response to a notice under regulation 106, the Committee must determine
whether to omit the GI.
(2) The Committee must make a determination to omit the
GI from the Register if it is satisfied of the following matters:
(a) the GI is not protected by the laws of the
country where the area indicated by the GI is located;
(b) in the 3 years before the date of the notice
under regulation 106, wine originating in the country, region or locality
indicated by the GI has not been described and presented for sale in Australia
using the GI or a registered translation of the GI.
(3) The Committee must make a determination in writing not
to omit the GI from the Register if it is not satisfied of either or both of
the matters in subregulation (2).
(4) If the Committee makes a determination to omit a GI
for which there is a registered translation, the Committee must also make a
determination to omit the translation.
108 Notice
of determination
The Presiding Member of the Geographical
Indications Committee must:
(a) give a notice of the Committee’s
determination to the applicant; and
(b) publish a notice setting out the terms of the
determination in any manner that the Committee thinks appropriate.
109 Date
of effect of determination to omit foreign GI
(1) If the determination
made by the Geographical Indications Committee under regulation 107 is to
omit the GI from the Register, the Presiding Member of the Committee must give
a copy of the determination to the Register so that particulars of the
determination can be omitted from the Register as soon as practicable.
(2) When the Presiding Member gives a copy of the
determination to the Registrar, the Presiding Member must also give a copy to
the Chairperson of the Corporation.
(3) The determination of the Committee takes effect on
the day on which particulars of the GI are omitted from the Register.
Part 7 Miscellaneous
110 Registration
not intended to create or affect trade mark rights
The inclusion of a GI or a translation of a GI in
Part 1 of the Register is not intended to create or affect a right under the Trade
Marks Act 1995 or at common law in respect of a trade mark.
111 Delegation
(1) The Corporation may, by writing under its
common seal, delegate any or all of its powers under these Regulations (except
this power of delegation) to a person or to a committee appointed under section
11 of the Act.
(2) A power delegated under
subregulation (1), if exercised by the delegate, is taken to have been
exercised by the Corporation.
(3) A delegation under subregulation (1) does
not prevent the exercise of a power by the Corporation.