Trademarks

Trademarks & Eligibility for the WET Rebate

One of the issues raised at many of the WET Rebate seminars held around Australia is around the requirement for wine containers to have a trademark to be eligibile for the WET rebate. It is clear that there is not a strong understanding of what a trademark is, the distinction between a trademark and a business name; and what a common law trademark is.

Trademark Requirements

• The wine must be packaged so each container is directly branded with a trademark that is owned by the producer, or an entity associated with the producer, that readily identifies, or can be associated with the producer of the wine.
• It is not sufficient for the brand to be placed on a box of wine. The brand must be included on each individual bottle of wine within the box.
• Wine must be branded with a trademark for it to qualify for the WET producer rebate.  Provided this is done, the wine can still be branded with other trademarks that the producer does not necessarily own, but has some association or connection with (ie through a commercial arrangement), this will not affect their rebate entitlement.

Definition of a Trademark
To qualify, the trademark must be either a trade mark within the meaning of Trade Marks Act 1995 or the Trade Marks Act 2002of New Zealand, and one of the following must apply to the trademark:

• it is registered;
• an application for registration of the trade mark is pending; or
• it has been used in the course of trade throughout the period beginning from 1 July 2015 and ending at the time an assessable dealing with the wine occurred.

Eligibility for the WET rebate will be maintained while:

• An application for an Australian trade mark is pending from the time when the application has been filed until:
• the application lapses, is withdrawn or is rejected;
• if the Registrar of Trade Marks refuses to register the trade mark and there is no appeal against the decision, the end of the period allowed for the appeal;
• if the Registrar refuses the decision to register the trade mark, the decision is appealed and the decision to refuse registration is upheld, the day on which the decision is upheld; or
• the trade mark is registered.

A trademark also qualifies if it has been used in the course of trade throughout the period beginning from 1 July 2015 and ending at the time an assessable dealing with the wine occurred.  Examples of trademarks of this type include:

• an Australian common law trade mark – that is a trade mark that an Australian court or the Registrar of Trade Marks has recognised as a common law trade mark in Australia;
• a New Zealand common law trade mark – that is a trademark that a New Zealand court has recognised as a common law trademark in New Zealand; or
• a trademark that a producer has applied to their product that has not been registered as a trademark.

To be eligible for the WET rebate, you must comply with the above requirements. While there is no substitute for good legal advice, there is some good information on the IP Australia website. This may help you decide if you need register a trademark, or decide if you need legal advice to determine if you have a common-law mark. 

WFA recommends visiting the business.gov.au website, which provides sound advice on Trademarks.