Recent changes have been made to the Wine Equalisation Tax (WET) legislation which outline certain trade mark requirements which vintners must abide by in order to take advantage of the WET Rebate. The legislation has been enacted as the Treasury Laws Amendment (2017 Measure No. 4) Act 2017 and can be accessed here.
The changes are particularly important for wine labels established after 1 July 2015.
The key takeaways as far as trade marks are concerned are:
- Display and Ownership of Trade Marks: Each bottle of wine must be clearly branded with a trade mark which identifies or is associated with the producer of the wine, and is owned by the producer or an associated entity. This means that it is essential for any licensed use of a trade mark between associated entities is properly documented in case the ownership of a trade mark is called into question.
- Unregistered Trade Mark Use: Trade Marks which have been in use from at least 1 July 2015 up until the assessable transaction will qualify as Trade Marks for the purposes of claiming the rebate, whether or not they are registered Trade Marks. However the continuity of use can still be called into question and proof may be required to show that use has been continuous during this period. The safer option would be to apply for trade mark registration which will avoid the requirement to demonstrate continuous use.
- Trade Mark Applications: The filing of a trade mark application will qualify your Trade Mark for the purposes of obtaining the rebate. So long as that application remains pending and does not lapse, the rebate can be claimed.
- Trade Mark Registrations: Obtaining a registered trade mark will provide you with the strongest basis to qualify for the rebate.
- Refused Trade Mark Applications: If a new trade mark (created after 1 July 2015) has been applied for and refused registration, then rights to claim the rebate may be lost. It is important to note that a trade mark application is not refused merely if an application is made and eventually lapses. A refusal will only take place if:
- The trade mark applicant has requested a hearing of an adverse decision by an Examiner, and the Hearing Officer has heard the matter and decided to uphold the Examiner’s decision; OR
- The trade mark application is opposed by a third party, the opposition goes to hearing and there is a decision made in the Opponent’s favour to refuse registration.
What Do I Need To Do To Ensure I Can Still Access The WET Rebate?
Our key recommendations are:
- Ensure that you seek registration of your identifying trade marks regardless of when you commenced use, but in particular for new brands created after 1 July 2015. Information regarding trade mark protection can be found here.
- If you encounter any issues with registration (eg. because your mark is too descriptive or conflicts with prior marks), ensure that you have developed a strategy to overcome those issues and to keep your application live until those issues are resolved. Further information about overcoming an adverse report can be found here.
- Obtain legal advice before making any decision to challenge any adverse finding by a Trade Mark Examiner.
- Obtain legal advice in the event that your trade mark application is facing an opposition by a third party. Further information about the opposition process can be found here.
- Ensure you have documented licensing agreements in place between the producer and any associated entities using or applying your trade marks.