When Jayne Powell’s Trade Mark certificate arrived in the post recently certifying she was the registered owner of the name “Champagne Jayne”, the Sydney-based wine educator celebrated by cracking open a bottle of French bubbly.
But if the sparkling wine expert never touched another bottle of champagne after a five-year legal fight of David and Goliath proportions against the might of the $7 billion industry’s governing body, you’d understand why.
Powell was given the nickname “Champagne Jayne” by friends during her university days and in 2003, launched her wine education and consultancy business under the moniker. She was lauded as a champagne expert, wrote the award-winning book “Champagne, Behind the Bubbles”, was named champagne educator of the year in London in 2012 and a “Dame Chevalier” by the Ordre des Coteaux de Champagne.
But when she went to trademark the name “Champagne Jayne” in Australia, it sparked a five-year legal war against Powell by the Comité Interprofessionnel du Vin de Champagne (CIVC), the champagne industry’s trade association.
As well as objecting to the Trade Mark, the CIVC launched Federal Court legal action against Powell’s use of “Champagne Jayne”. Among a string of complaints, the CIVC said she also talked about sparkling wines and therefore infringed on the champagne trademark.
Powell’s entire livelihood was at stake and the CIVC began hunting her on several fronts.
Powell was accused of engaging in misleading or deceptive conduct and making false representations under Australian Consumer Law.
The CIVC said Powell used “the glamour, Frenchness and accoutrements otherwise associated with Champagne wines and the name Champagne” to also promote sparkling wines and “damaged the goodwill of the Champagne sector”.
The CIVC took umbrage at sparkling wines from other countries being mentioned in the same sentence as its own products and trawled through Powell’s social media account objecting to several of her Twitter and Instagram posts.
Powell says the multiple legal proceedings, which included Federal Court subpoenas against Australian sparkling wine producers, made her a pariah in Australia and Champagne.
“Everybody was very scared of CIVC,” she recounts “I tried to work in the UK until I was threatened with legal action over there as well. I knew that I hadn’t done anything wrong so I borrowed money from friends and family to defend myself.”
Lawyers for the CIVC wrote to Powell from London demanding she cease and desist using the name Champagne Jayne in the UK. Their letter complained the Powell was promoting English sparkling wines.
It’s been five years since Powell last had contact with the CIVC and she says she bears them no ill will, she remains puzzled.
“The way I was treated during both these proceedings left me feeling bullied and oppressed. I believe in honesty, integrity and fairness, so I’m incredibly relieved to have finally been vindicated for having the courage to stand up for what I believe in,” Powell said.
“I would like to understand what motivated CIVC to attack one of champagne’s biggest fans who didn’t even sell any wine.
“Instead of mounting such an expensive rear-guard legal action to recapture a word which is generic or at best semi-generic in various jurisdictions, perhaps the CIVC should concentrate its considerable resources on protecting the reputation for quality of the various producers of champagne.”
The case, which included a four-day trial in Melbourne, and failed court-ordered mediation sessions in London and Melbourne, left Powell on the verge of bankruptcy. Her legal coasts are estimated to be in six figures and would have been higher had she not found a barrister willing to work for free.
“I was really lucky that, given my financial circumstances after two years of legal battles and the resignation of my legal team before the second mediation, in addition to the complexities of IP law involved in my case, the trial judge made a pro bono referral for me,” she said.
“Two newly minted but experienced and enthusiastic female barristers accepted the job and made a huge difference to the rest of my federal court case.”
In late 2015, justice Jonathan Beach of the Federal Court of Victoria ruled Powell could continue to be known as Champagne Jayne, allowing her to continue her business, website, Facebook account and other social media under that name. The judgment upheld the Champagne Jayne trade mark application
It also dismissed the CIVC’s claim that she had contravened the Australian Grape and Wine Authority Act by discussing sparkling wines “under a false or misleading description” because she was a promoter, not a seller of wine.
But it was not a total victory for Powell, with the Court making some pointed remarks about her social media use, finding that on some occasions she did not make it clear enough that sparkling wine is not champagne.
Powell said she was chastened by the court’s view and now uses the hashtag #thisisnotchampagne when mentioning sparkling wines.
Despite her victory, the Comité Champagne was not finished with Powell. Her trade make application dragged on for another 18 months before IP Australia as the CIVC applied to submit further evidence.
Here’s part of what the CIVC said in its submissions objecting to the application:
A reasonable person would have a legitimate expectation that at an event having a name which includes the word ‘Champagne’, hosted by ‘CHAMPAGNE JAYNE’, the wines served would be exclusively Champagne wines. In such circumstances, there is a strong likelihood of attendees being misled into thinking that all of the sparkling wines served are Champagne wines, when they are not.
But IP Australia ruled that the opponent failed to establish a ground of opposition in a 14-page judgment. When the trade mark for Champagne Jayne was finally granted on 3 April 2017, Powell kept it secret.
“Given the zealous nature of the opponent I thought it prudent to wait until the appeal period had expired before speaking publicly about this fantastic result,” she said.
“This is a significant legal win which restores my professional reputation and means I am finally free to continue my life’s work of educating and entertaining people about the world’s most enigmatic fine wines – champagne and other world class sparkling wines.”
Powell says she’s learnt more more about the law and my own resilience than I ever expected or planned to over the last five years.
She’s now studying for a Masters degree in the law, media and journalism, with a focus on intellectual property law and social media and writing her next book.
“The trade mark registration is really just the tangible proof of my resilience and inner strength, but it does feel good and my love for champagne wines is undiminished, despite being unreasonably rejected by that industry’s watchdog,” she said.
There was one final sting in the tail however. After spending tens of thousands of dollars on her defence, she applied for costs in the trade mark case and was awarded them. But costs are capped at just under $2000 in a trade mark hearing. Powell applied for an award “above the usual scale” on the basis of the “vexatious nature” of the opposition, but hearing officer Robert Wilson concluded the CIVC’s objections were not vexatious.
A supporter set up a Go Fund Me campaign which has so far raised $1,950 towards a $40,000 goal to pay Powell’s legal costs.
Business Insider attempted to contact the CIVC’s Australian office, but was unsuccessful after the local bureau director left the position earlier this year.
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