A Bordeaux wine estate’s recent injunction claim against a Tasmanian winemaker has produced a rich blend of intriguing information about the international wine business and Australian wine consumption.
Vieux Château Certan produces two types of expensive French red wine using various high-end grapes.
It sued Australian brand Pipers Brook Vineyard, a company majority owned by Kreglinger for wrongly representing an association with and passing-off as its elite château product.
VCC’s Federal Court injunction claim in Melbourne claimed a high degree of visual similarity between the presentation of its wine – the use of a pink cap, a label featuring a stately rural home, French text, and the name “Certan” – and Pipers Brook New Certan product and that the Tasmanian producer thereby represented it was in some way connected with them.
VCC produces 30,000 to 50,000 bottles annually but sales in Australia have been very limited. It retails here for between approximately $500 and $800 per bottle.
One of Pipers Brook’s estate – Mount Pleasant – is situated on land owned by Paul de Moor, a Kreglinger director who claimed to be a descendant of the Belgian wine merchant Georges Thienpont whose family had developed a VCC estate in Pomerol in the Bordeaux region of France that lies to the east of the Dordogne River, part of the wine making region referred to as the Right Bank.
To decide the contest Justice Johnathan Beach heard evidence from 10 wine experts over six days to determine whether or not the similarities were likely to mislead consumers of fine wine and members of the fine wine trade to erroneously believe there was such an association.
His 112 page judgment is a rich in observations from wine experts about French and Australian vino.
Imported wines accounted for 31.4% of the Australian wine market by value, (US $1.907 billion) of which the majority of those wines originate from France (37.6% by value) and New Zealand (40.1%).
Bordeaux represents just 1% of all French wine sold in Australia for off-premises consumption.
$25 is the demarcation price point for identifying non-premium product according to wine author and critic, Jeremy Oliver.
A consumer purchasing a wine under $25 is someone who “likes wine but is not obsessed by it”. This type of consumer, he said, may buy a $50 bottle of wine for a gift or special occasion, but not very often.
Such a consumer has minimal knowledge of Bordeaux estates but might have heard of some of the more elite châteaux like Lafite and Latour, and maybe even Haut-Brion from Graves.
Buyers of $70 to $100 bottles of wine on the other hand are likely to be people with a cellar or collection, are wealthier, better educated about wine, subscribers to a wine publication or website, users of wine apps such as Vino and Decanter, members of a wine club or a wine group and visitors to wineries much of which they do to gain knowledge they can show off.
A typical Australian buyer of a $500 Pomerol wine would generally obtain a personal allocation from a “negociant” and buy it to consume at the optimum time a decade or so later.
Tasmanian pinot noir is typically light to medium body in structure and of medium flavour intensity – he observed – whereas the premium wines from the right bank in Bordeaux deliver significant depth of flavour and structure. In his opinion, they could hardly be more different.
Mr Oliver said that in his experience a Tasmanian pinot noir drinker would be more expected to gravitate to and be far more interested in Burgundy and Rhone wine, unless they are an individual who likes and purchases every style of wine, which is rare.
Other experts gave evidence including wine writer and critic Jane Faulkner, wine importer and distributor Daniel Airoldi, MW Master of Wine Andrew Caillard, Negociants Australia’s Timothy Evans and wine judge Philip Rich.
None of these experts were in Justice Beach’s view “representative of the ordinary and reasonable consumer”.
Huon Hooke – a professional wine writer and critic – and Ms Faulkner both swore they thought the pink cap and label similarities and name “Certan” spoke to them of a connection between Pipers Brook and VCC.
In its defence Pipers Brook argued that despite the similarity of appearance, there was no risk of confusion because few Australian consumers of Tasmanian pinot noir would have heard of, far less be able to recall much if anything about the VCC product even if they had at one time or another encountered it.
After all, the brand described it as Pinor Noir from Tasmania not a Bordeaux from France.
And, so ran their argument, New Certan is sold in a Burgundy shaped bottle – the bottle shape used for pinot noir – whereas VCC Wine is sold in a classic Bordeaux (cabernet sauvignon) shaped bottle.
Justice Beach agreed. Very few consumers would ever have been exposed to the pink cap and other visual features of the VCC presentation and, he thought, they would not be representative of the ordinary and reasonable consumer.
That said, he accepted that those very fortunate people who can afford to collect wines from Pomerol and Right Bank châteaux – typically deep enthusiasts – might also be prepared to buy a $75 to $95 Tasmanian pinot noir.
Thus by a thin margin he was satisfied VCC has made out its case that at lease that narrow class of consumers – members of the fine wine trade who had knowledge of the French original – were likely to have been misled or deceived into thinking that the New Certan wine had some association with VCC.
That though was only up to the time Pipers Brook changed the presentation of its New Certain pinot noir. The change to a bronze cap and an off white, straight-edged label, eliminated any prospect of confusion and therefore CVV’s request for an injunction should be refused.
The judge – in assessing what loss VCC had suffered by reason of the “passing-off” for that limited period to a very limited class of consumer – concluded there had been no loss or damage to it from Piper Brook’s conduct.
The judge also found de Moor had not created the label with any intention to deceive or mislead: “His motivations for creating the New Certan wine were quite personal,” derived from his familial connection to VCC in that he was in fact the grandson of Georges Thienpont’s only daughter.
Justice Beach accepted Piper Brook’s undertaking not to sell the remaining 1,755 bottles of New Certan in pink cap bottles that had previously been marketed on the Kreglinger website and via the Qantas Frequent Flyer loyalty program.
He also refused CVV’s demand that the Piper Brook trademark for “New Certan” be cancelled on the ground of its similarity to its “Vieux” (old) Certan label because that argument wrongly assumed Australian consumers understand the meaning of that word and would recollect the name Vieux Château Certan.
Because each party had had “some measure of success” on their arguments, he ordered that Pipers Brook was not required to pay any of CVV’s legal costs of its claim.
