After an agonising wait of nearly six months
Jayne Powell has won the right to retain her business name - Champagne Jayne.
This is an embarrassing setback for the CIVC and
the Champagne producers. However, Justice Beach did find that her coverage of
non-Champagne sparkling wines on social media could be misleading. This appears
to be a largely favourable for Jayne as she can keep the Champagne Jayne and
doesn't have to destroy her tweets, Facebook etc.
However, there are aspects of the judgment from Justice Beach that runs to 338 paragraphs where he finds that the CIVC do have grounds for complaint. In particular the use of the title ambassador and occasionally mentioning other sparkling wines and not stressing sufficiently that she is talking about an sparkling wine that is not made in Champagne. The judge also question her realtionship with Accord Wines, shown in her promotion of a sparkling wine made under the label – Arras.
On advice from her lawyer Jayne Powell comments: "I am pleased that I don't have to change my name but I am taking on board what the judge has to say."
Even a partial victory by an individual against Champagne's might, wealth and the legal firepower this can buy is impressive.
Refusing to bow down before the onslaught of the CIVC has cost Jayne severely
both financially and in terms of the stress and strain.
It is a considerable embarrassment for Champagne
that they have failed in their attempt to grind one of its most stalwart
supporters into the dust. Shamefully, if there were Champagne producers who
had doubts over the wisdom of the CIVC's action, they weren't prepared to stand
up and be counted.
Will this judgment have implications for others,
who incorporate the Champagne name into their business name? I suspect we will
need to read the full judgment carefully and then what agreement over the use of social
media the CIVC and Jayne manage to sort out. There is also the question of
costs to be determined.
It would be good if this setback for Champagne
persuaded the CIVC and leading Champagne houses such as colour obsessed Veuve
Clicquot be less ready reach for the legal option, though this is probably a
forlorn hope.
I won't be saluting brave, battling Champagne
Jayne with a glass or so of Champagne as the ban on tasting or drinking this
beverage as well as the visiting the region remains in place.
I understand from Diane Lofts, who created the funding page for Jayne, that:
'It
seems it is not all over completely yet, the CIVC have 14 days to file
and serve proposed minutes of ordes to give effect to these reasons
including on costs and for the further conduct of the matter, together
with written submissions (limited to five pages)
Champagne Jayne has to within 14 days of the receipt of the applicant's proposed
minutes of orders and submissions file and serve her proposed minutes of
orders, together with written submissions (limited to five pages).
It
would be great to see everyone who is now welcoming and celebrating
Champagne Jayne's victory in keeping her name now made a donation on Jayne's Go Fund Me page.
Having
waited six months for the judge to produce his judgment, typical that it should have
been released on the day I was travelling back from the Loire!
***
In In summary, the CIVC has
succeeded on limited aspects only of its broader case. I am satisfied that it has made out its case
under paragraphs 19(c), 20(c) and 21(b) of the amended statement of claim in
terms that Ms Powell’s conduct in relation to her use of social media was
likely to mislead or deceive in contravention of s 18 of the ACL in
relation to her reference to, use and promotion of sparkling wines.
2
In relation to the relief
sought, it is appropriate to observe the following.
3
First, the CIVC’s originating
application has sought orders cancelling various registrations for Ms Powell’s
business name “Champagne Jayne”, her domain name www.champagnejayne.com, her
Facebook account “Champagne Jayne” and her Twitter account “Jayne Powell
@champagnejayne”. The CIVC has also
sought an order that Ms Powell withdraw her trade mark application. In my view, the CIVC has not established any entitlement
to such relief.
4
Second, the CIVC’s originating
application has sought injunctive relief under s 44AB of the AGWA
Act. But as the underlying
contraventions have not been established, it is not entitled to any such
relief.
5
Third, the CIVC’s originating
application has also sought injunctive relief in the following terms:
A permanent injunction restraining the
Respondent from representing in any manner whatsoever, including by using the
name “Champagne”, that:
(a) the Respondent’s
services have the sponsorship or approval of the Champagne Sector;
(b) any products (which
are not Champagne Wines) which the Respondent promotes and endorses have the
sponsorship or approval of the Champagne Sector;
(c) the Respondent has
the sponsorship or approval of or an affiliation with the Champagne Sector;
(d) the Respondent’s
services pertain solely to:
(i) the
Champagne region of France;
(ii) Champagne
Wines;
(iii) wines produced using
the grape varieties and methods of cultivation and vinification, and complying
with the standards, composition and specifications required for Champagne
wines; and/or
(iv) the Champagne
Geographical Indication.
6
Given my findings on the
s 18 contraventions, the only case that has been made out for potential
injunctive relief does not squarely fit within any of these categories. I will discuss further with counsel a
modified form of limb (b).
7
Finally, although damages have
been sought in the originating application, that remedy is apparently not
pursued.
8
I will give the parties an
opportunity to address the appropriate form of declarations and injunctions (if
any) that should be made to accord with the contraventions that I have found
concerning some of Ms Powell’s use of social media referring to sparkling
wines.'
