Use of 'Champagne Jayne' to promote sparkling wines found to be misleading and deceptive where origin is unclear

In Comité Interprofessionnel du Vin de Champagne v Powell ([2015] FCA 1110), a single judge of Australia's Federal Court has found that use of the word 'Champagne' in the form of a username, 'Champagne Jayne', constituted misleading and deceptive conduct in contravention of the Australian consumer law, in circumstances where 'Champagne Jayne' posted photographs of sparkling wines on Twitter and Instagram, misrepresenting that the wines originated from the Champagne region. However, the court concluded that the applicant was not entitled to relief such as cancellation of the Champagne Jayne business name or domain, or removal of social media accounts such as Facebook and Twitter.

The present case concerned the conduct of Rachel Powell, a wine enthusiast, educator and event consultant, who trades under her persona, 'Champagne Jayne'. Powell operates a number of social media accounts, including Facebook, Twitter, Instagram and YouTube, as 'Champagne Jayne'.

The Comité Interprofessionnel du Vin de Champagne (CIVC) is an association of growers, producers and negociants of Champagne wines, which initiates legal action globally to protect the Champagne name and restrict its use to wines produced in Champagne. CIVC alleged that Powell's use of the word 'Champagne' constituted misleading and deceptive conduct and false misrepresentations in contravention of the Australian Competition and Consumer Act 2010.

In determining the relevant class of persons who were allegedly misled, Justice Beach considered the Australian public's understanding of the word 'Champagne', including that use of the word 'Champagne' has only recently become more restricted in Australia to Champagne wines only, and not sparkling wines generally. Justice Beach was of the view that the relevant class of persons were members of the Australian public who were prospective purchasers of both Champagne wines and sparkling wines, including those who did not know the difference between Champagne wines and sparkling wines and those who were unsure as to whether there was a difference. 

Justice Beach found that Powell's conduct on social media platforms was misleading and deceptive, as Powell incorrectly conveyed in her posts that sparkling wines were Champagne wines, or that sparkling wines possess the characteristics of Champagne wines. For those consumers who mistakenly believed there is no difference between Champagne wines and sparkling wines, Powell's conduct perpetuated and reinforced that pre-existing misconception. For consumers who were unsure as to whether there was a difference between Champagne wines and sparkling wines, Powell's conduct was likely to cause these consumers to conclude incorrectly.

Powell's conduct included posting photographs of non-Champagne sparkling wines under the name 'Champagne' by using 'Champagne Jayne' as a username, even though no further words were used in the post to indicate the origin of the wines. Although some instances of Powell's conduct involved qualifying language which pointed to the wines having origins other than Champagne, Justice Beach found on the facts that Powell's qualifying language was insufficient to displace the misleading and deceptive effect. However, Justice Beach did not conclude that the 'Champagne Jayne' persona, by itself, was likely to mislead or deceive consumers.

Interestingly, Justice Beach considered whether the effect of a social media post was enduring or ephemeral.  His Honour commented that, although one post may be fleeting or transitory in the context of real-time and cyberspace, and therefore may not be enough to amount to misleading and deceptive conduct, the "ripple effects" of social media, the preservation of a post on the Internet and the influence on a reader, particularly if similar types of representations are made repeatedly over an extended period of time, can be enduring.

Lisa Ritson and Julie Chiu, Ashurst Australia, Sydney