Champagne Jayne on the CIVC's legal action

Champagne Jayne comments on CIVC case: 

'So relieved that the Court found I could 

keep Champagne Jayne’
 

'one of the most challenging and difficult periods of my life'

On Tuesday 20th October 2015 Justice Jonathan Beach gave his long awaited judgment on the case brought against Jayne Powell – Champagne Jayne – by the CIVC. Jayne won a clear points victory – able to keep her Champagne Jayne moniker and able to keep all of her Facebook, Twitter accounts, etc. The CIVC's action had demanded that Jayne should not be entitled to use her Champagne Jayne moniker and that everything associated with it should be deleted.     

The following day (21st October) the CIVC gave the following statement to wine journalist Jeni Port, which she then published on Twitter: 

Not a scintilla of regret from the CIVC 
despite ruling demonstrating that 
there was no need to bring this case ...

'The Comite Champagne, after vain attempts at mediation with Ms Powell, was forced to pursue Ms Powell before the Australian courts. The Comite Champagne handles approximately 1,200 cases every year relating to the protection of the Champagne name.' 'More than 95% of all matters are resolved out of court.'

I wonder why the CIVC's claim of 'vain attempts at mediation' reminds me of Veuve Clicquot's 'amicable conversation' with Ciro Picariello ... Does a great white shark perhaps negotiate with a surfer before using their teeth ...?


Following this comment from the CIVC and with advice and permission from her legal team Jayne Powell has made these comments:   


"I have been reflecting on the Federal Court judgment and what it means, which is why I did not comment immediately upon its publication last week.

"As you can appreciate, this has been an emotional time.

"Some people might wonder why I would defend this litigation in the first place, and not just withdraw my trademark and change my name, as the CIVC wanted.  

"For me it wasn’t as simple as that. ‘Champagne Jayne’ is my long time personal nickname and part of my identity. Yes, it is the name of my wine education and  consultancy business (which also happens to be my dream job). 

"But ‘Champagne Jayne’ has really been just me sharing my knowledge and love for champagne with other people around the world. I felt that the nature of CIVC’s demands over-reached, and I was not prepared to capitulate.

"I am so relieved and pleased that the Court found I could keep my ‘Champagne Jayne’ name. This means my ‘Champagne Jayne’ business name, website and social media accounts can continue. 

"If I want, I can also pursue the registration of my trade mark CHAMPAGNE JAYNE in Class 41 - Entertainer services; public speaking services; author services being the writing of texts (other than publicity texts); event management services (organisation of educational, entertainment, sporting or  cultural events); master of ceremonies  services.

"(To be clear, Federal Court Proceeding VID1373/2013 is a separate, but parallel matter to the Champagne Jayne 1471878 Trade Mark Opposition originally lodged by CIVC on 2 November 2012, which is still on foot at this time.)

 

"It is not quite business as usual, but it is close.

"YES it has hurt a lot to be taken to court by the representative body of the industry I have supported for so many years. The consequences of defending my reputation and integrity have been painful and far reaching.

"However, as hard as it is to say right now, I respect the fact that the CIVC goes to so much effort to protect the champagne industry, and the integrity of the appellation. 

"Hopefully, and given our shared passion for champagne, we can move on from this.

"I need to mention a couple of things about sparkling wines and social media use.  

"Champagne v sparkling wines

• First of all, it is true that I talk about sparkling wines (which are not champagnes) as well as champagne (wines produced in the Champagne region of France). Champagne wines constitute less than 10% of global sparkling wine production, but more than 50% of total sparkling wine value.

•   The judge confirmed that I can continue to discuss sparkling wines, provided that any sparkling wines I mention are clearly identified as not being champagnes (wines made in the Champagne region of France).

•   As the Court found, discussion of sparkling wine has been about 10% of my work. The CIVC was not happy about this - I believe this is a key reason why the litigation was brought against me. 

•   Whilst my passion is predominantly champagne, there are some great sparkling wines being made in Australia and elsewhere, which I like personally and have discussed in the media and at events.

•   It is from a foundation of knowing a lot about and appreciating champagne that I take a democratic approach. I encourage people to explore the options available, including sparkling wines, and to educate people about the characteristics of products. 

"Social Media Use

•   The Court found that some aspects of my social media use in the past did not make it clear enough that sparkling wine is not champagne.

•   For instance, it was found that some of my tweets might lead Australians to believe, by mistake, that the sparkling wine I referred to was actually champagne. I take on board the lessons from the judgment about this, and am reviewing my social media use as a result.

•   Since the end of the trial on 13 April 2015, I have used the hashtag “#thisisnotchampagne” in Champagne Jayne social media comments which may refer to sparkling wines which are not from the Champagne region. 

"Merci, Danke, Thank You

"Last, but not least, I have so many people to thank from around the world. I can’t name you all here, because that list would go on for at least 20 pages, and in any event some of you may prefer to remain anonymous.   

•   You know that this has been one of the most challenging and difficult periods of my life. Three years of litigation have taken a very substantial personal and financial toll, and its not quite over yet.  

•   You have picked me up and kept me going (on social media and in person). 

•   You have given me good advice, kept things light and social when I needed it, and been a shoulder to lean on when times have been tough.  

•   You know who you are, and I sincerely thank you each and every one of you, from the bottom of my heart.

"Otherwise, spare a thought for those who coined my nickname at Reading University. When my friends decided to affectionately dub me ‘Champagne Jayne’ all those years ago, who would have thought I would literally have to go into Court on the other side of the world to defend my right to use it!"

••• 

Some background to the case:

How events unfolded:

In July 2012 Jayne successfully registered Champagne Jayne as a trademark in Australia. The CIVC filed its opposition to this trademark on 2nd November 2012 and started separate court proceedings on 20th December 2013. 

There was a fruitless attempt at mediation in London on 19th March 2014. At the end of 2014 the CIVC and Jayne spent four days (15th-18th December) in the Melbourne Federal Court arguing the case in front of Justice Beach. On 18th December the case was adjourned for a further attempt at mediation. Held on 4th March 2015 this again failed to resolve the dispute, so final submissions were made in court on 13th April, by which time Jayne had a new legal team. 

On 20th October Justice Beach delivered his judgment – a win on points for Champagne Jayne.

The CIVC has 14 days from the judgment to comment on Justice Beach's findings, limited to five pages. Then Jayne and her team have 14 days to respond, also with a limit of five pages. There also remains the important and probably thorny issue of costs.       

Here is the Federal Court judgment in full  

Details on the trademark opposition here: 

Although Jayne hasn't spoken to the media, there was no gagging order. However, during the December 2014 hearings, both parties privately agreed to confidentiality. During closing submissions on 13th April Jayne's legal team told Justice Beach that she would not speak to the press until after the judgment was delivered. Apart from this release from Jayne, she will not be commenting further until the final part of this case is over.   

The CIVC based its case on the allegation that Jayne had engaged in misleading or deceptive conduct and made false representations in contravention of 'ss 18 and 29 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL)'. The CIVC also alleged that Jayne had advertised wines under a false or misleading description so contravening the 'ss 40C and 40E of the Australian Grape and Wine Authority Act 2013 (Cth) (AGWA Act)'.  

Fortunately Justice Beach found that the CIVC failed to make its case to force Jayne to lose her Champagne Jayne business name, her domain name www.champagnejayne.com, her Facebook account ‘Champagne Jayne’, her Twitter account ‘Jayne Powell @champagnejayne’, and which would require her to withdraw her Trade Mark application. 

Nor were the CIVC successful under its AGWA Act claim as Jayne is 'not part of the supply chain; she promotes but does not sell wine'. Nor was the CIVC any more successful in its objection to the way Jayne speaks about sparkling wines at events.  

However, Justice Beach did find that Jayne should not have called herself a Champagne Ambassador. Although I fancy the use of 'an ambassador for Champagne' might pass the judicial test. 

Justice Beach also found that some of Jayne's posts and tweets were misleading and contravened the Australian Consumer Law as they failed to make it clear that some of the sparkling wines cited were not Champagne.  

This judgment may well have implications for social media users in Australia, especially if it appears that they are promoting products even when they are not paid to promote them.

Here are some of the relevant sections of the judgment: 

a. Those who use social media as part of the general promotion of their  business (particularly relevant for small businesses) are capable of being held liable under the ACL on the basis that this is conduct ‘in trade or commerce’ (see paras [191] and [192] of judgment).

b.  A person can be liable under the ACL for ‘promoting’ a product even if the person is not paid to do so. One is at risk of liability if the conduct goes beyond being merely an independent reviewer and critic, and extends to ‘speaking favourably’ or ‘advocating’ for a product in a PR sense (see paras [124], [166(a), (c), (d)]).

c.  A person can be liable for misleading or deceptive conduct under the ACL even if he or she is not part of the supply chain and does not sell the product promoted.  This is because the people who read tweets and posts are actual or potential consumers and capable of being misled (see para [193] of judgment).

d.  In considering liability, even though “Tweeting is fleeting”, “the ripple  effects of such a mode are unclear”, found the judge.  Three characteristics said to make tweets “enduring” (and therefore potentially misleading or deceptive in breach of the ACL) were:

“First, a Tweet may be fleeting, but its effect or influence on a reader may be more enduring… Secondly, although particular communications may be fleeting in real time, nevertheless there is usually a more permanent record of the communications contained and preserved…for anyone to access at a later stage. (para 180)

"Third, although the communications may be fleeting in real time, the repetition over an extended time frame of similar types of communications may demonstrate a pattern of more enduring and potentially infringing conduct. (para [180])"