Wine Australia Regulations 2018, Австралия, WIPO Lex

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Английский Wine Australia Regulations 2018

Wine Australia Regulations 2018

Authorised Version F2018L00286 registered 16/03/2018

Wine Australia Regulations 2018

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor-General of the

Commonwealth of Australia, acting with the advice of the Federal Executive Council,

make the following regulations.

Dated 15 March 2018

Peter Cosgrove

Governor-General

By His Excellency’s Command

Anne Ruston

Assistant Minister for Agriculture and Water Resources

Parliamentary Secretary to the Deputy Prime Minister and Minister for Agriculture and

Water Resources

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Contents

Part 1—Preliminary 1 1 Name........................................................................................................................... 1

2 Commencement .......................................................................................................... 1

3 Authority..................................................................................................................... 1

4 Definitions .................................................................................................................. 1

Part 2—Definitions for the purposes of the Act 3 5 Grape product ............................................................................................................. 3

6 Prescribed geographical indication ............................................................................. 3

Part 3—Export controls 4

Division 1—Export conditions and exemptions 4

7 Conditions of export ................................................................................................... 4

8 Exemptions ................................................................................................................. 4

Division 2—Export licences 6

9 Grant of licence........................................................................................................... 6

10 Fit and proper person test for grant of licence............................................................. 6

11 Period of licence ......................................................................................................... 7

12 Authority may request information from licensee....................................................... 7

13 Suspension and cancellation of licence ....................................................................... 7

Division 3—Approved grape products 9

14 Approval of grape product for export ......................................................................... 9

15 Approval holder may authorise another licensee to export grape product .................10

16 Authority may request information about grape product ...........................................10

17 Suspension and revocation of approval......................................................................10

Division 4—Export certificates 12

18 Application for export certificate ...............................................................................12

19 Authority may request information about compliance with other laws......................12

20 Issue of export certificate ...........................................................................................12

21 Revocation of export certificate .................................................................................13

Division 5—Other matters 14

22 Direction by Authority on quantity of exports ...........................................................14

23 Applications for review of decisions..........................................................................14

Part 4—Description and presentation of wine 15 24 Wine originating in more than one country................................................................15

25 Grape varieties ...........................................................................................................15

26 Use of registered geographical indications ................................................................16

27 Vintages .....................................................................................................................17

Part 5—Exemption of wines from offences relating to description and

presentation 19 28 Small quantities of wine.............................................................................................19

29 Geographical indication: Tokay.................................................................................20

30 Variety names that are also geographical indications ................................................20

31 Marketing periods for use of geographical indications, registered traditional

expressions and registered additional terms ...............................................................20

32 Use of trade marks in description of wine..................................................................21

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Part 6—Determination of Australian GIs 23

Division 1—Modifications of the Act 23

33 Modifications of Division 4 of Part VIB of the Act ...................................................23

Division 2—Consideration of objections to determination of Australian GIs 24

34 Application of this Division.......................................................................................24

35 Parties to proceedings ................................................................................................24

36 Evidence in relation to ground of objection and recommendation .............................24

37 Evidence in answer ....................................................................................................24

38 New evidence.............................................................................................................25

39 Hearing and submissions ...........................................................................................25

40 Parties must give copies of evidence to each other and pay filing fee .......................26

41 Decision by Registrar of Trade Marks .......................................................................26

42 Fees............................................................................................................................27

43 Costs ..........................................................................................................................27

Division 3—Decision that ground of objection to proposed GI no longer exists 28

44 Application of this Division.......................................................................................28

45 Notice of application..................................................................................................28

46 Parties to proceedings ................................................................................................28

47 Evidence in relation to whether ground of objection no longer exists .......................28

48 Evidence in answer ....................................................................................................29

49 New evidence.............................................................................................................29

50 Hearing and submissions ...........................................................................................29

51 Parties must give copies of evidence to each other and pay filing fee .......................30

52 Withdrawal of application..........................................................................................30

53 Decision by Registrar of Trade Marks .......................................................................30

54 Notice of decision ......................................................................................................31

55 Fees............................................................................................................................31

56 Costs ..........................................................................................................................32

Division 4—Criteria for determining Australian GIs 33

57 Criteria for determining geographical indications......................................................33

Part 7—Determination of foreign GIs and translations of foreign GIs 35

Division 1—Preliminary 35

58 Simplified outline of this Part ....................................................................................35

59 Purpose of Part...........................................................................................................36

60 Applications for determination ..................................................................................36

Division 2—Objections to determination of foreign GIs and translations of

foreign GIs 37

61 Notice to be given of proposed foreign GI or translation of foreign GI .....................37

62 Grounds of objection to determination of foreign GI or translation of foreign

GI ...............................................................................................................................37

Division 3—Consideration of objections to determination of foreign GIs or

translation of foreign GIs 40

63 Application of this Division.......................................................................................40

64 Notice of objection.....................................................................................................40

65 Parties to proceedings ................................................................................................40

66 Evidence in relation to ground of objection and recommendation .............................40

67 Evidence in answer ....................................................................................................40

68 New evidence.............................................................................................................41

69 Hearing and submissions ...........................................................................................41

70 Parties must give copies of evidence to each other and pay filing fee .......................42

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71 Decision by Registrar of Trade Marks .......................................................................42

72 Recommendation by Registrar of Trade Marks to determine foreign GI or

translation of foreign GI despite objection being made out .......................................43

73 Notice of decision ......................................................................................................43

74 Fees............................................................................................................................43

75 Costs ..........................................................................................................................44

Division 4—Decision that ground of objection to proposed item no longer

exists 45

76 Application for decision.............................................................................................45

77 Notice of application..................................................................................................45

78 Parties to proceedings ................................................................................................45

79 Evidence relevant to whether ground of objection no longer exists ...........................45

80 Evidence in answer ....................................................................................................45

81 New evidence.............................................................................................................46

82 Hearing and submissions ...........................................................................................46

83 Parties must give copies of evidence to each other and pay filing fee .......................47

84 Withdrawal of application..........................................................................................47

85 Decision by Registrar of Trade Marks .......................................................................47

86 Notice of decision ......................................................................................................48

87 Fees............................................................................................................................48

88 Costs ..........................................................................................................................49

Division 5—Appeals against decisions of Registrar of Trade Marks 50

89 Decisions appellable to Federal Court .......................................................................50

Division 6—Determination of foreign GIs and translations of foreign GIs 51

90 When Geographical Indications Committee may proceed to make a

determination .............................................................................................................51

91 Consultation by Geographical Indications Committee...............................................52

92 Determining foreign GIs ............................................................................................52

93 Determining translations ............................................................................................52

94 Interim determination.................................................................................................53

95 Publication of notice of interim determination...........................................................53

96 Final determination ....................................................................................................53

97 Publication of notice of final determination...............................................................53

98 Review of final determination....................................................................................54

99 Date of effect of final determination ..........................................................................54

Part 8—Omission from the Register of foreign GIs and translations of

foreign GIs 56

Division 1—Preliminary 56

100 Simplified outline of this Part ....................................................................................56

101 Purpose of Part...........................................................................................................56

Division 2—Omission for non-use or loss of significance 57

102 Application for omission of foreign GI or translation of foreign GI ..........................57

103 Further information concerning application...............................................................57

104 Notice by Geographical Indications Committee ........................................................57

105 Determination by Geographical Indications Committee ............................................57

106 Notice of determination .............................................................................................58

107 AAT review of determinations...................................................................................59

108 Date of effect of determination to omit item..............................................................59

Division 3—Omission because GI not protected in country of origin and not

used in Australia 60

109 Application for omission of foreign GI......................................................................60

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110 Further information concerning application...............................................................60

111 Notice by Geographical Indications Committee ........................................................60

112 Determination by Geographical Indications Committee ............................................60

113 Notice of determination .............................................................................................61

114 Date of effect of determination to omit foreign GI ....................................................61

Part 9—Miscellaneous 62 115 Delegation..................................................................................................................62

116 Authority may use computer programs to make decisions.........................................62

Part 10—Transitional provisions 63

Division 1—On commencement 63

117 Export controls...........................................................................................................63

118 Determination of GIs .................................................................................................63

Schedule 1—Modifications of Division 4 of Part VIB of the Act 65 1 Grounds of objection to the determination of a geographical indication....................65

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Preliminary Part 1

Section 1

Part 1—Preliminary

1 Name

This instrument is the Wine Australia Regulations 2018.

2 Commencement

(1) Each provision of this instrument specified in column 1 of the table commences,

or is taken to have commenced, in accordance with column 2 of the table. Any

other statement in column 2 has effect according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/Details

1. The whole of this 1 April 2018. 1 April 2018

instrument

Note: This table relates only to the provisions of this instrument as originally made. It will

not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument.

Information may be inserted in this column, or information in it may be edited, in

any published version of this instrument.

3 Authority

This instrument is made under the Wine Australia Act 2013.

4 Definitions

In this instrument:

Act means the Wine Australia Act 2013.

approval holder, in relation to a grape product approved under section 14, means

the licensee to whom approval was given by the Authority.

associate of a person (the first person) includes each of the following:

(a) a person who is or was a consultant, adviser, partner, representative on

retainer, employer or employee of:

(i) the first person; or

(ii) a corporation of which the first person is an officer or employee or in

which the first person holds shares;

(b) if the first person is an individual—a relative of the first person;

influence the conduct of, a business or undertaking of:

(i) the first person; or

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(ii) a corporation of which the first person is an officer or employee or in

which the first person holds shares;

(d) a corporation:

(i) of which the first person, or any of the other persons mentioned in

paragraphs (a) to (c), is an officer or employee; or

(ii) in which the first person, or any of the other persons mentioned in

paragraphs (a) to (c), holds shares;

(e) if the first person is a body corporate—a related body corporate (within the

meaning of the Corporations Act 2001) of the first person.

Australia New Zealand Food Standards Code has the same meaning as in the

Food Standards Australia New Zealand Act 1991.

Australian law means a law of the Commonwealth, or of a State or Territory.

child: without limiting who is a child of a person for the purposes of this

instrument, someone is the child of a person if he or she is a child of the person

within the meaning of the Family Law Act 1975.

export certificate means a certificate issued to a licensee by the Authority under

section 20.

foreign place name: see subsection 26(9).

GI means geographical indication.

licence means a licence granted under section 9.

licensee means the holder of a licence that is in force.

parent: without limiting who is a parent of a person for the purposes of this

instrument, someone is the parent of a person if the person is his or her child

because of the definition of child in this section.

party:

(a) in relation to a proceeding mentioned in Division 2 of Part 6—see

section 35; and

(b) in relation to a proceeding mentioned in Division 3 of Part 6—see

section 46; and

section 65; and

(d) in relation to a proceeding mentioned in Division 4 of Part 7—see

section 78.

proposed item has the meaning given by subsection 61(1).

relative, in relation to an individual, means the spouse, de facto partner (within

the meaning of the Acts Interpretation Act 1901), parent or other ancestor, child

or other descendant, brother or sister of the individual.

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Definitions for the purposes of the Act Part 2

Section 5

Part 2—Definitions for the purposes of the Act

5 Grape product

For the purposes of paragraph (d) of the definition of grape product in

subsection 4(1) of the Act, a product is a grape product for the purposes of the

Act if:

(a) it includes wine; and

(b) it is derived in whole or in part from prescribed goods; and

Zealand Act 1991, applies to it.

6 Prescribed geographical indication

For the purposes of the definition of prescribed geographical indication in

subsection 4(1) of the Act, a geographical indication included in the Register in

relation to Australia is prescribed.

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Part 3 Export controls

Division 1 Export conditions and exemptions

Section 7

Part 3—Export controls

Division 1—Export conditions and exemptions

7 Conditions of export

For the purposes of paragraph 46(1)(c) of the Act and subject to section 8 of this

instrument, the export of a consignment of a grape product is prohibited unless:

(a) the exporter of the consignment is a licensee; and

(b) the grape product is approved under section 14 of this instrument for export

by the exporter; and

conditions; and

(d) an export certificate for the consignment is in force; and

(e) if there are conditions on the validity of the certificate—the export is in

accordance with the conditions; and

(f) if the Authority has given a direction to the exporter under section 22 of

this instrument—the export complies with the direction.

Note: It is an offence under section 44 of the Act to export a grape product if the export

contravenes the regulations.

8 Exemptions

Exemption for small quantities

(1) Section 7 does not apply to the export of a consignment if the total quantity of

grape products in the consignment is 100 litres or less.

(2) For the purposes of subsection (1), 2 or more consignments are taken to be a

single consignment if they are exported:

(a) on a single ship or aircraft to a single port of discharge; and

(b) by a single exporter, or by 2 or more exporters who are:

(i) associated entities (within the meaning of section 50AAA of the

Corporations Act 2001); or

(ii) individuals who are relatives; or

(iii) acting in concert with each other.

Exemption for certain purposes

(3) Section 7 does not apply to the export of any of the following:

(a) grape product that is contained in the personal luggage of a traveller;

(b) grape product, belonging to an individual who is moving house, that is for

domestic use;

event;

(d) grape product that is exported for a scientific or technical purpose;

(e) grape product that is exported by a diplomatic, consular or similar

establishment as part of the duty-free allowance of the establishment;

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(f) grape product that is held on board a means of international transport as

victualling supplies;

(g) grape product that is a commercial sample for a prospective buyer.

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Part 3 Export controls

Division 2 Export licences

Section 9

Division 2—Export licences

9 Grant of licence

(1) A person may apply to the Authority, in a form approved in writing by the

Authority, for a licence to export grape products from Australia.

(2) If a person applies in accordance with subsection (1), the Authority must:

(a) grant the licence to the person in writing; or

(b) refuse to grant the licence.

(3) In deciding whether to grant the licence, the Authority must consider the

following matters:

(a) the financial standing of the applicant;

(b) whether the applicant has a place of business in Australia;

(d) any matter relating to the applicant that may adversely affect the export

trade in grape products;

(e) any other matter relating to the promotion of the export of grape products

that relates to the applicant;

(f) whether the Authority has suspended or cancelled a licence held by:

(i) the applicant; or

(ii) an associate of the applicant;

(g) whether the applicant is a fit and proper person.

(4) The Authority may consider any other matter relating to the promotion of the

export of grape products.

(5) If the Authority refuses to grant the licence, the Authority must notify the

applicant in writing of its decision and state in the notice the reasons for the

decision.

10 Fit and proper person test for grant of licence

(1) In determining, for the purposes of paragraph 9(3)(g), whether the applicant is a

fit and proper person, the Authority must have regard to the following matters:

(a) whether the applicant or an associate of the applicant has been convicted of

an offence against the Act;

(b) whether a debt is due and payable by the applicant or an associate of the

applicant under the Act;

associate of the applicant, and has not been paid;

(d) whether a previous application made by the applicant or an associate of the

applicant, for an approval of a grape product for export under section 14,

for an export certificate or for any other approval under the Act, has been

refused or such an approval or certificate has been revoked.

(2) The Authority may also have regard to:

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(a) whether the applicant has been convicted of an offence against, or ordered

to pay a pecuniary penalty under, any Australian law (other than the Act);

and

(b) any other relevant matter.

(3) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914

(which includes provisions that, in certain circumstances, relieve persons from

the requirement to disclose spent convictions and require persons aware of such

convictions to disregard them).

11 Period of licence

(1) A licence is in force for the period specified in the licence. The initial period

must not be more than 3 years.

(2) The licensee may apply, in writing, for the period of the licence to be extended.

(3) If a licensee applies in accordance with subsection (2) the Authority may, by

notice in writing given to the licensee, grant an extension, with the period of each

extension being not more than 3 years.

12 Authority may request information from licensee

(1) The Authority may request the following kinds of information from a licensee:

(a) information in respect of the licensee in relation to a matter mentioned in

subsection 9(3);

(b) information about the export, or intended export, of grape products by the

licensee;

the licensee.

(2) The request must:

(a) be made in writing; and

(b) identify the information required; and

Authority.

13 Suspension and cancellation of licence

(1) The Authority may, by notice in writing given to the licensee, suspend or cancel

a licence in any of the following circumstances:

(a) a material change occurs in respect of the licensee in relation to a matter

mentioned in subsection 9(3);

(b) the licensee:

(i) changes the licensee’s place of business in Australia; and

(ii) does not inform the Authority in writing of the new place of business

in Australia within 14 days of the change;

Act or this instrument;

(d) wine export charge is payable by the licensee, the charge is due for

payment and the charge has not been paid.

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Division 2 Export licences

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(2) The Authority may, by notice in writing given to the licensee, suspend a licence

if the licensee fails to comply with a request under section 12.

(3) A notice under subsection (1) or (2) must:

(a) if the licence is suspended—state the period of suspension; and

(b) state the reasons for the suspension or cancellation.

(4) The suspension or cancellation takes effect from the date of the notice.

(5) A suspension ends at the end of the period stated in the notice, unless the

Authority ends the suspension earlier by notice in writing given to the licensee.

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Export controls Part 3

Approved grape products Division 3

Section 14

Division 3—Approved grape products

14 Approval of grape product for export

(1) A licensee may apply to the Authority, in a form approved in writing by the

Authority, for a grape product to be approved for export by the licensee.

(2) If a licensee applies in accordance with subsection (1), the Authority must:

(a) approve the grape product, with or without conditions; or

(b) refuse to approve the grape product.

(3) The Authority may approve the grape product if the Authority is satisfied that:

(a) either:

(i) the grape product complies with the Australia New Zealand Food

Standards Code; or

(ii) the ways in which the product does not comply will not compromise

the reputation of Australian grape products; and

(b) the grape product is sound and merchantable; and

regard to requirements of the Act, other Australian laws and the laws of

other countries.

(4) However, the Authority must not approve a grape product other than wine,

brandy or grape spirit if the description and presentation of the product includes:

(a) a registered geographical indication other than the term “Australia”; or

(b) a registered translation.

(5) The Authority must refuse to approve the grape product if the licensee fails to

comply with a request under section 16 in relation to the grape product.

Conditions

(6) Without limiting paragraph (2)(a), the Authority may impose a condition that

limits the countries to which export is approved.

Example: Export might only be approved where the Authority is satisfied the grape product meets

requirements of the importing country.

Notice of decision

(7) The Authority must notify the licensee in writing of its decision. If the Authority

refuses to approve the grape product, or imposes conditions on the approval of

the grape product, the notice must state the reasons for the decision.

Variation of conditions

(8) The Authority may, by notice in writing given to the approval holder, vary the

conditions on an approval. The notice must state the reasons for the variation.

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Part 3 Export controls

Division 3 Approved grape products

Section 15

Description and presentation

(9) This section applies as if a reference to wine in section 5C of the Act (meaning

of description and presentation) included a reference to a grape product.

15 Approval holder may authorise another licensee to export grape product

(1) An approval holder for a grape product may authorise another licensee, by notice

in writing given to the Authority, to export the grape product.

(2) While the authorisation is in force, the approval of the grape product also

approves export by the authorised licensee.

(3) Subsection (2) does not permit the authorised licensee to authorise other

licensees.

16 Authority may request information about grape product

(1) The Authority may make the following kinds of requests under this section in

relation to a grape product:

(a) a request for records demonstrating that the grape product complies with

the Australia New Zealand Food Standards Code in particular respects

(such respects to be identified in the request);

(b) a request for records demonstrating that the grape product is sound and

merchantable;

whether it is sound and merchantable;

(d) if the grape product is wine—a request for a copy of records kept under

section 39F of the Act in relation to the wine, for the purpose of verifying a

label claim used in the description and presentation of the wine (such label

claim to be identified in the request).

(2) The request may be made to:

(a) a licensee who has applied for approval of the grape product under

section 14; or

(b) an approval holder for the grape product.

(3) The request must:

(a) be made in writing; and

(b) state the date by which the licensee or approval holder must provide the

records or sample to the Authority.

17 Suspension and revocation of approval

Suspension

(1) The Authority must, by notice in writing given to the approval holder, suspend

the approval of a grape product if the approval holder fails to comply with a

request under section 16 in relation to the grape product.

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(2) The Authority must, by notice in writing given to the approval holder, remove

the suspension if the records or sample requested under section 16 is given to the

Authority.

Revocation

(3) The Authority may, by notice in writing given to the approval holder, revoke the

approval of a grape product if the Authority is no longer satisfied that the grape

product meets the requirements of subsections 14(3) and (4).

(4) The notice must state the reasons for the decision.

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Part 3 Export controls

Division 4 Export certificates

Section 18

Division 4—Export certificates

18 Application for export certificate

(1) A licensee may apply, in a form approved in writing by the Authority, for a

certificate for the export of a consignment of a grape product by the licensee.

(2) The application must be given to the Authority at least 5 days before the day on

which the grape product is to be exported.

(3) The form of application approved by the Authority must require the application

to identify the following:

(a) the day on which the grape product is to be exported;

(b) the country to which the grape product is to be exported;

19 Authority may request information about compliance with other laws

(1) If a licensee applies in accordance with section 18 for a certificate for the export

of a consignment of a grape product, the Authority may ask the licensee to give

the Authority information demonstrating that a requirement under an Australian

law that relates to the description and presentation of the grape product has been

met.

Example: If a grape product is described as “organic” and is a product to which the Export

Control (Organic Produce Certification) Orders applies, the Authority may ask the

licensee to give the Authority information demonstrating that an organic produce

certificate has been issued for the product.

(2) The request must:

(a) be made in writing at least 2 days before the day on which the grape

product is to be exported; and

(b) identify the requirement and the law under which it applies; and

must be before the day on which the grape product is to be exported.

(3) This section applies as if a reference to wine in section 5C of the Act (meaning

of description and presentation) included a reference to a grape product.

20 Issue of export certificate

(1) If a licensee applies in accordance with section 18 for a certificate for the export

of a consignment of a grape product by the licensee, the Authority must:

(a) issue the export certificate to the licensee in writing; or

(b) refuse to issue the export certificate;

before the day on which the consignment is to be exported.

(2) The Authority may issue the export certificate to the licensee if the Authority is

satisfied that:

(a) the grape product is approved under section 14 for export by the licensee;

and

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(b) if there are conditions on the approval—the export would comply with the

conditions; and

relation to a requirement—the description and presentation of the grape

product meets the requirement; and

(d) if the Authority has given a direction to the licensee under section 22—the

export would comply with the direction.

(3) In deciding whether to issue the export certificate, the Authority may have regard

to the person to whom the product will be consigned in the country to which the

grape product is to be exported.

(4) The Authority must refuse to issue the export certificate if:

(a) the Authority reasonably believes that the grape product cannot lawfully be

sold in the country to which it is to be exported; or

(b) the licensee fails to comply with a request under section 19 in relation to

the consignment.

(5) The Authority may specify in the export certificate conditions on the validity of

the certificate. If the Authority specifies conditions, the Authority must give the

licensee written reasons for doing so.

(6) If the Authority refuses to issue the export certificate, the Authority must notify

the licensee in writing of its decision and state in the notice the reasons for the

decision.

21 Revocation of export certificate

(1) The authority may, by notice in writing given to the licensee, revoke an export

certificate if the export of the grape product by the licensee no longer complies

with the requirements of subsection 20(2).

(2) The notice must state the reasons for the decision.

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Part 3 Export controls

Division 5 Other matters

Section 22

Division 5—Other matters

22 Direction by Authority on quantity of exports

The Authority may give to a licensee a written direction about the quantity of

grape product that the licensee may export:

(a) generally; or

(b) to a country specified in the direction; or

23 Applications for review of decisions

Applications may be made to the Administrative Appeals Tribunal for review of

the following decisions of the Authority:

(a) a decision under section 9 to refuse to grant a licence;

(b) a decision under section 13 to suspend or cancel a licence;

(d) a decision under section 14 to impose conditions on the approval of a grape

product for export (including through variation of the conditions on an

existing approvan( �

(e) a decision under section 14 to approve a grape product that does not

comply with the Australia New Zealand Food Standards Code;

(f) a decision under section 17 to revoke the approval of a grape product for

export;

(g) a decision under section 20 to refuse to issue an export certificate;

(h) a decision under section 20 to specify conditions on the validity of an

export certificate;

(i) a decision under section 21 to revoke an export certificate;

(j) a decision to give a direction under section 22.

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Part 4—Description and presentation of wine

24 Wine originating in more than one country

(1) For the purposes of subsection 40F(6) of the Act, if wine is made from grapes

grown in more than one country, the description and presentation of the wine

must identify the proportion of the wine that originated in each country.

(2) For the purposes of determining the countries of origin and the proportion from

each country, the quantity of additives derived from grapes, not exceeding a total

of 20ml/L, is excluded.

25 Grape varieties

(1) For the purposes of subsection 40F(6) of the Act, a name used for a variety in the

description and presentation of wine originating in Australia must be a name of a

variety, or a synonym of a name of a variety, that is recognised as a name or a

synonym by at least one of the following organisations:

(a) International Organisation of Vine and Wine;

(b) International Union for the Protection of New Varieties of Plants;

(2) For the purposes of subsection 40F(6) of the Act, if wine originating in Australia

is made from 2 or more varieties, the wine may be described and presented as

being of a single variety only if at least 850ml/L of the wine is obtained from that

variety.

(3) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine originating in Australia refers to more than one variety:

(a) the description and presentation must list the varieties in descending order

of their proportions in the wine; and

(b) each variety named in the description and presentation must be present in

greater proportion in the composition of the wine than any variety that is

not named; and

varieties.

(4) For the purposes of determining the proportion of the varieties under

subsection (2) or (3), the quantity of products used for possible sweetening and

cultures of microorganisms, not exceeding a total of 50ml/L, is excluded.

(5) For the purposes of this section, the volume of a fortified wine is to be calculated

exclusive of the grape spirit or brandy (or both) added to the wine.

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26 Use of registered geographical indications

Use of GI registered in relation to Australia—limit on number of GIs and foreign

place names

(1) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine uses one or more GIs registered in relation to Australia, the

total number of registered GIs and foreign place names used in the description

and presentation of the wine must be 3 or less.

Note: Subsection 4(1) of the Act defines registered geographical indication to mean a

geographical indication included in Part 1 of the Register kept under section 40ZC of

the Act. Subsection 40ZD(2) of the Act requires Part 1 of the Register to include

particulars of any region or locality in relation to which a geographical indication is

determined.

Use of one GI registered in relation to Australia

(2) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine:

(a) uses one GI registered in relation to Australia; and

(b) does not use a GI registered in relation to another country; and

at least 850ml/L of the wine must have been obtained from grapes grown in the

region or locality in Australia in relation to which the GI is registered.

Use of one GI registered in relation to a foreign country

(3) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine:

(a) uses one GI registered in relation to another country; and

(b) does not use a GI registered in relation to Australia;

at least 850ml/L of the wine must have been obtained from grapes grown in the

country, region or locality indicated by the GI.

Note: This subsection applies whether or not the description and presentation of the wine also

uses one or more foreign place names.

Use of GI registered in relation to Australia with one or 2 other registered GIs

(4) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine:

(a) uses 2 or 3 registered GIs (at least one of which is registered in relation to

Australia); and

(b) does not use a foreign place name;

the wine, and the description and presentation, must meet the requirements of

subsection (5) of this section.

(5) For the purposes of subsection (4):

(a) in total, at least 950ml/L of the wine must have been obtained from grapes

grown in the regions or localities in relation to which those GIs are

registered; and

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(b) at least 50ml/L of the wine must have been obtained from each of those

regions or localities; and

descending order of the proportions of the relevant grapes in the wine.

Use of GI registered in relation to Australia with foreign place name

(6) For the purposes of subsection 40F(6) of the Act, if the description and

presentation of wine uses:

(a) at least one GI registered in relation to Australia; and

(b) at least one foreign place name;

the wine, and the description and presentation, must meet the requirements of

subsection (7) of this section.

(7) For the purposes of subsection (6):

(a) in total, at least 950ml/L of the wine must have been obtained from grapes

grown in:

(i) the regions or localities in relation to which those GIs are registered;

and

(ii) the countries, regions or localities identified by those foreign place

names; and

(b) at least 50ml/L of the wine must have been obtained from each of those

countries, regions or localities; and

place names in descending order of the proportions of the relevant grapes

in the wine.

General

(8) For the purposes of this section:

(a) a word or term is not to be treated as a registered GI or a foreign place

name, as the case may be, when it appears in the description and

presentation because it is required by another law; and

(b) the volume of a fortified wine is to be calculated exclusive of the grape

spirit or brandy (or both) added to the wine.

Example: For paragraph (a), ‘Australia’ and the name of a foreign country might appear in the

description and presentation because they are required by section 24.

(9) In this instrument:

foreign place name, in relation to wine, means a word or expression that:

(a) is not a registered GI; and

(b) identifies a country, region or locality (other than Australia) in which the

wine originated.

27 Vintages

(1) For the purposes of subsection 40F(6) of the Act, if:

(a) wine originating in Australia is made using grapes that were harvested in

more than one vintage; and

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(b) the description and presentation of the wine refers to one or more of those

vintages;

the description and presentation of the wine must refer to all of the vintages in

descending order of the proportions of the relevant grapes in the wine.

(2) Despite subsection (1), wine may be described and presented as being of one

vintage if at least 850ml/L of the wine is obtained from grapes harvested in that

vintage.

(3) For the purposes of subsection (2), the volume of a fortified wine is to be

calculated exclusive of the grape spirit or brandy (or both) added to the wine.

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Section 28

Part 5—Exemption of wines from offences relating to

description and presentation

28 Small quantities of wine

(1) For the purposes of the definition of small quantities in subsection 40J(1) of the

Act, the following are declared to be small quantities of wine:

(a) a quantity of wine, not exceeding 100 litres, that is:

(i) exported in a single consignment; and

(ii) packed in labelled containers of a capacity of not more than 5 litres

and fitted with a non-reusable closing device;

(b) a quantity of wine, not exceeding 30 litres, that is contained in the personal

luggage of a traveller;

an individual to another individual;

(d) a quantity of wine, belonging to an individual who is moving house, that is

for domestic use;

(e) a quantity of wine that is:

(i) intended to be displayed at an event, in Australia or an agreement

country, that is a trade fair or comparable event for the purposes of the

customs laws of the relevant country; and

(ii) packed in labelled containers of a capacity of not more than 2 litres

and fitted with a non-reusable closing device;

(f) a quantity of wine, not exceeding 100 litres, that is imported into Australia

or exported to an agreement country for a scientific or technical purpose;

(g) a quantity of wine that is imported into Australia, or exported to an

agreement country, by a diplomatic, consular or similar establishment as

part of the duty-free allowance of the establishment;

(h) a quantity of wine that is held on board a means of international transport

as victualling supplies.

(2) For the purposes of subparagraph (1)(a)(i), 2 or more consignments are taken to

be a single consignment if they are exported:

(a) on a single ship or aircraft to a single port of discharge; and

(b) by a single exporter, or by 2 or more exporters who are:

(i) associated entities (within the meaning of section 50AAA of the

Corporations Act 2001); or

(ii) individuals who are relatives; or

(iii) acting in concert with each other.

(3) For the purposes of paragraph 40J(4)(b) of the Act, conditions and procedures

that form part of the description of a small quantity of wine in a paragraph of

subsection (1) of this section are prescribed in relation to that small quantity.

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29 Geographical indication: Tokay

(1) For the purposes of subsection 40J(5) of the Act, wine is exempted from the

operation of subsections 40C(1) and 40E(1) of the Act if the description and

presentation of the wine is false or misleading only because of the use of the

geographical indication “Tokay”.

(2) This section is repealed at the start of 1 September 2020.

30 Variety names that are also geographical indications

For the purposes of subsection 40J(5) of the Act, wine is exempted from the

operation of subsections 40C(1) and 40G(1) of the Act if:

(a) the description and presentation of the wine is false, or does not comply

with registered conditions of use, only because of the use of a term that is

recognised as the name of a variety, or a synonym of a name of a variety,

by at least one of the following organisations:

(i) International Organisation of Vine and Wine;

(ii) International Union for the Protection of New Varieties of Plants;

(iii) International Plant Genetic Resources Institute; and

(b) the term is used to describe a variety of grapes from which the wine is

made.

31 Marketing periods for use of geographical indications, registered traditional

expressions and registered additional terms

(1) For the purposes of subsection 40J(5) of the Act, wine is exempted from the

operation of the offence provisions if:

(a) the description and presentation of the wine is false or misleading, or does

not comply with registered conditions of use, only because of the use of a

registered geographical indication, a registered translation, a registered

traditional expression or a registered additional term; and

(b) the wine was lawfully produced before the day on which the offence

provisions first applied to the use of the indication, translation, expression

or term; and

(i) a wholesaler of wine acting in the course of the wholesaler’s business;

(ii) a retailer of wine in the course of the retailer’s business.

Note: The offence provisions is defined in subsection 40J(1) of the Act.

Marketing period

(2) The exemption in subsection (1) applies for a period, commencing on the day on

which the offence provisions first apply to the use of the indication, translation,

expression or term, of:

(a) for use in the description and presentation of fortified wines—5 years; and

(b) for use in the description and presentation of other wines—3 years.

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(3) However, if a retailer has a stock of a wine at the end of the period mentioned in

subsection (2), the exemption continues in relation to use by the retailer until that

stock is exhausted.

32 Use of trade marks in description of wine

Circumstances in which exemption applies

(1) Subsection (4) applies if:

(a) the Registrar of Trade Marks decides, under subsection 40RC(2) of the

Act, that an objection to a proposed GI is made out, but the GI is

subsequently registered in accordance with subsection 40ZD(2) of the Act;

(b) the Registrar of Trade Marks decides, under section 71 of this instrument,

that an objection to a proposed item is made out, but the item is

subsequently registered in accordance with subsection 40ZD(2) of the Act;

the Trade Marks Act 1995 and:

(i) after the registration of, or application for, the trade mark, a GI or

translation is proposed and registered; and

(ii) the GI or translation is identical to, or is likely to cause confusion

with, the trade mark; or

(d) a trade mark listed in subsection (3) is identical to:

(i) a registered GI that indicates a foreign country or a region or locality

in a foreign country; or

(ii) a registered translation of such a GI; or

(e) a trade mark listed in subsection (3) is likely to cause confusion with:

(i) a registered GI that indicates a foreign country or a region or locality

in a foreign country; or

(ii) a registered translation of such a GI.

(2) If:

(a) paragraph (1)(a) or (b) applies; and

(b) the objection was on the ground that the proposed GI or proposed item is

used in Australia:

(i) as the common name of a type or style of wine; or

(ii) as the name of a variety of grapes;

then a reference in subsection (4) to a trade mark is taken to be a reference to that

name.

(3) For the purposes of paragraphs (1)(d) and (e), the trade marks are the following:

(a) Ilya;

(b) Karloff;

(d) Lindauer;

(e) Montana;

(f) Salena Estate;

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(g) The Bissy.

Exemption

(4) For the purposes of subsection 40J(5) of the Act, wine is exempted from the

offence provisions if:

(a) the description and presentation of the wine is false or misleading, or does

not comply with registered conditions of use, only because:

(i) the trade mark is used in the description and presentation; and

(ii) the trade mark is the same as or resembles the registered GI or

registered translation; and

(iii) the wine did not originate in the country, region or locality indicated

by the registered GI or registered translation; and

(b) the origin of the wine is shown in the description and presentation of the

wine in a way that is not likely to mislead.

Note: The offence provisions is defined in subsection 40J(1) of the Act.

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Modifications of the Act Division 1

Section 33

Part 6—Determination of Australian GIs

Division 1—Modifications of the Act

33 Modifications of Division 4 of Part VIB of the Act

For the purposes of subsection 40PA(3) of the Act, the operation of Division 4 of

Part VIB of the Act is modified as set out in Schedule 1 to this instrument.

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Division 2 Consideration of objections to determination of Australian GIs

Section 34

Division 2—Consideration of objections to determination of

Australian GIs

34 Application of this Division

For the purposes of subsection 40RC(5) of the Act, this Division sets out the

procedure to be followed, if the Registrar of Trade Marks receives an objection

in relation to a proposed GI on a ground set out in section 40RB of the Act, in

making decisions under subsections 40RC(2) and (3) of the Act.

35 Parties to proceedings

Each of the following is a party in relation to consideration of the objection:

(a) the person who made the objection;

(b) if an application was made for the determination of the proposed GI under

section 40R of the Act—the applicant.

36 Evidence in relation to ground of objection and recommendation

(1) The Registrar of Trade Marks must send each party a written notice that:

(a) gives the name and address of any other party; and

(b) invites the party to file evidence relevant to whether the Registrar of Trade

Marks should:

(i) decide the ground of objection is or is not made out; or

(ii) recommend to the Geographical Indications Committee that the

proposed GI be determined despite the objection having been made

out; and

date of the notice.

Note: There may only be one party in some proceedings.

(2) The Registrar of Trade Marks must not send the notices until:

(a) the Registrar of Trade Marks has notified the Geographical Indications

Committee under subsection 40RC(1) of the Act that the objection has

been received; and

(b) the person who made the objection has paid the fee prescribed by

section 42 of this instrument for dealing with the objection.

37 Evidence in answer

(1) If a party files evidence in response to a notice sent under section 36, the

Registrar of Trade Marks must send the other party (if any) a written notice that:

(a) invites the other party to file evidence in answer; and

(b) states the period from the date of the notice in which evidence in answer

may be filed.

(2) The period stated for the purposes of paragraph (1)(b) must be at least 2 months.

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(3) The Registrar of Trade Marks must also notify both parties, in writing, of the

date by which a request for a hearing under section 39 must be made.

Note: There may only be one party in some proceedings.

38 New evidence

(1) A party may apply to the Registrar of Trade Marks, in writing, to file new

evidence:

(a) after the end of a period specified by the Registrar of Trade Marks for the

party to file evidence; and

(b) before the Registrar of Trade Marks makes a decision under

subsection 40RC(2) or (3) of the Act.

(2) An application must:

(a) be accompanied by the fee prescribed by section 42; and

(b) include a statement:

(i) describing the new evidence; and

(ii) giving the reasons why the new evidence was not filed within the

specified period.

(3) If, after considering the application, the Registrar of Trade Marks decides that it

is reasonable to allow the filing of the new evidence, he or she must:

(a) set a date by which the new evidence must be filed; and

(b) notify the applying party of the date in writing.

(4) If the Registrar of Trade Marks decides that it is not reasonable to allow the

filing of the new evidence, he or she must notify the applying party in writing

that new evidence may not be filed.

Evidence in answer to new evidence

(5) If the new evidence is filed by the date set under subsection (3), the Registrar of

Trade Marks must send a written notice to the other party (if any) that:

(a) tells the other party that the new evidence is filed; and

(b) sets a reasonable period for the party to file evidence in answer to it.

(6) The Registrar of Trade Marks must also notify both parties, in writing, of the

date by which a request for a hearing under section 39 must be made.

Note: There may only be one party in some proceedings.

39 Hearing and submissions

(1) If at least one notice is given under section 37 or subsection 38(5), any party may

ask the Registrar of Trade Marks to conduct a hearing.

(2) The request must be made to the Registrar of Trade Marks in writing no later

than 1 month after the last day on which evidence may be filed in accordance

with any notice given under section 37 or subsection 38(5).

(3) The request must be accompanied by the fee prescribed by section 42.

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Division 2 Consideration of objections to determination of Australian GIs

Section 40

(4) If the Registrar of Trade Marks receives a request in accordance with

subsections (1) to (3), he or she must:

(a) send each party a written notice that:

(i) informs the party a hearing will be held; and

(ii) invites written submissions to be made before the hearing; and

(b) conduct a hearing.

(5) If:

(a) the objection was made on a ground mentioned in subsection 40RB(1) of

the Act; and

(b) the registered trade mark concerned is the subject of removal or

cancellation proceedings;

the Registrar of Trade Marks must not conduct the hearing until the removal or

cancellation proceedings are complete.

(6) The fee prescribed by section 42 for attendance at a hearing is payable by each

party that attends the hearing.

40 Parties must give copies of evidence to each other and pay filing fee

(1) Evidence in relation to proceedings mentioned in this Division involving more

than one party is not taken to be validly filed unless the party filing the evidence:

(a) gives a copy of the evidence to the other party; and

(b) includes, with the evidence being filed, a statement setting out when and

how the copy was given to the other party.

(2) Evidence in relation to proceedings mentioned in this Division is not taken to be

validly filed unless the party filing the evidence pays the fee prescribed by

section 42.

41 Decision by Registrar of Trade Marks

(1) Subject to this section, the Registrar of Trade Marks must, as soon as practicable

after all periods for the filing of evidence or requesting conduct of a hearing have

ended (and, if a hearing is requested, after the hearing has been held), make a

decision under subsection 40RC(2) of the Act (and subsection 40RC(3) of the

Act if applicable) by considering:

(a) the notice published under subsection 40RA(2) of the Act; and

(b) the objection; and

(d) if a hearing has been held—representations and material from the hearing

and any written submissions by the parties; and

(e) any other matter that the Registrar of Trade Marks considers relevant.

(2) If:

(a) the objection was made on a ground mentioned in subsection 40RB(1) of

the Act; and

(b) the registered trade mark concerned is the subject of removal or

cancellation proceedings;

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the Registrar of Trade Marks must not make a decision under

subsection 40RC(2) or (3) of the Act until the removal or cancellation

proceedings are complete.

(3) The Registrar of Trade Marks must decide that the ground of objection is not

made out if:

(a) the person objecting to the proposed GI does not file any evidence within

the period mentioned in paragraph 36(1)(c); or

(b) the person objecting to the proposed GI withdraws the notice of objection

before the Registrar of Trade Marks makes a decision about the objection.

Note: The Registrar of Trade Marks must notify the parties and the Geographical Indications

Committee about his or her decision: see subsection 40RD(1) of the Act.

42 Fees

In proceedings mentioned in this Division, the fee specified in column 2 of an

item in the following table is payable to the Registrar of Trade Marks in respect

of a matter specified in column 1 of the item.

Fees for proceedings mentioned in this Division

Column 1 Column 2

Item Matter Fee

1 Dealing with an objection $500

2 Filing evidence under section 36, 37 or 38 (that is, $375

evidence in support, evidence in answer or new evidence)

3 Requesting a hearing under section 39 $500

Attendance at a hearing $500 per day or part of a day, but

any amount paid by the party

under item 3 in relation to the

hearing is deducted from the total

5 Applying to file new evidence under section 38 $100

43 Costs

The Registrar of Trade Marks must not make an order for costs in proceedings

mentioned in this Division.

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Division 3 Decision that ground of objection to proposed GI no longer exists

Section 44

Division 3—Decision that ground of objection to proposed GI no

longer exists

44 Application of this Division

For the purposes of subsection 40RE(2) of the Act, this Division sets out the

procedure to be followed, if the Registrar of Trade Marks receives an application

under paragraph 40RE(1)(b) of the Act for a decision that a ground of objection

to a proposed GI no longer exists, in making a decision under

subsection 40RE(1) of the Act.

45 Notice of application

The Registrar of Trade Marks must notify the Geographical Indications

Committee in writing of the receipt and terms of the application under

paragraph 40RE(1)(b) of the Act.

46 Parties to proceedings

Each of the following is a party in relation to determination of the application:

(a) the person who made the application;

(b) if the objection was made on a ground mentioned in subsection 40RB(1),

(3) or (4) of the Act—the owner of the trade mark concerned;

Schedule 1 to this instrument—the person who made the objection;

(d) if an application for the determination of the proposed GI was made under

section 40R of the Act by a person other than the person mentioned in

paragraph (a) of this section—the applicant for the determination of the

proposed GI.

Note: Schedule 1 to this instrument modifies the operation of section 40RB of the Act.

47 Evidence in relation to whether ground of objection no longer exists

(1) The Registrar of Trade Marks must send each party a written notice that:

(a) gives the name and address of each other party; and

(b) invites the party to file evidence relevant to whether the Registrar of Trade

Marks should decide that the ground of objection no longer exists; and

date of the notice.

(2) The Registrar of Trade Marks must not send the notices until:

(a) the Registrar of Trade Marks has notified the Geographical Indications

Committee of the application under section 45; and

(b) the person who made the application has paid the fee prescribed by

section 55 for dealing with the application.

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Section 48

48 Evidence in answer

(1) If a party files evidence in response to a notice sent under section 47, the

Registrar of Trade Marks must send each other party a written notice that:

(a) invites the other party to file evidence in answer; and

(b) states the period from the date of the notice in which evidence in answer

may be filed.

(2) The period stated for the purposes of paragraph (1)(b) must be at least 2 months.

(3) The Registrar of Trade Marks must also notify all parties, in writing, of the date

by which a request for a hearing under section 50 must be made.

49 New evidence

(1) A party may apply to the Registrar of Trade Marks, in writing, to file new

evidence:

(a) after the end of a period specified by the Registrar of Trade Marks for the

party to file evidence; and

(b) before the Registrar of Trade Marks makes a decision under

subsection 40RE(1) of the Act.

(2) An application must:

(a) be accompanied by the fee prescribed by section 55; and

(b) include a statement:

(i) describing the new evidence; and

(ii) giving the reasons why the new evidence was not filed within the

specified period.

(3) If, after considering the application, the Registrar of Trade Marks decides that it

is reasonable to allow the filing of the new evidence, he or she must:

(a) set a date by which the new evidence must be filed; and

(b) notify the applying party of the date in writing.

(4) If the Registrar of Trade Marks decides that it is not reasonable to allow the

filing of the new evidence, he or she must notify the applying party in writing

that new evidence may not be filed.

Evidence in answer to new evidence

(5) If the new evidence is filed by the date set under subsection (3), the Registrar of

Trade Marks must send a written notice to the other parties that:

(a) tells the other parties that the new evidence is filed; and

(b) sets a reasonable period for the parties to file evidence in answer to it.

(6) The Registrar of Trade Marks must also notify all parties, in writing, of the date

by which a request for a hearing under section 50 must be made.

50 Hearing and submissions

(1) If at least one notice is given under section 48 or subsection 49(5), any party may

ask the Registrar of Trade Marks to conduct a hearing.

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Section 51

(2) The request must be made in writing to the Registrar of Trade Marks no later

than 1 month after the last day on which evidence may be filed in accordance

with any notice given under section 48 or subsection 49(5).

(3) The request must be accompanied by the fee prescribed by section 55.

(4) If the Registrar of Trade Marks receives a request in accordance with

subsections (1) to (3), he or she must:

(a) send each party a written notice that:

(i) informs the party a hearing will be held; and

(ii) invites written submissions to be made before the hearing; and

(b) conduct a hearing.

(5) If:

(a) the objection was made on a ground mentioned in subsection 40RB(1) of

the Act; and

(b) the registered trade mark concerned is the subject of removal or

cancellation proceedings;

the Registrar of Trade Marks must not conduct the hearing until the removal or

cancellation proceedings are complete.

(6) The fee prescribed by section 55 for attendance at a hearing is payable by each

party that attends the hearing.

51 Parties must give copies of evidence to each other and pay filing fee

Evidence in relation to proceedings mentioned in this Division is not taken to be

validly filed unless the party filing the evidence:

(a) gives a copy of the evidence to each other party; and

(b) includes, with the evidence being filed, a statement setting out when and

how a copy was given to each other party; and

52 Withdrawal of application

If the applicant under paragraph 40RE(1)(b) of the Act withdraws the application

before the Registrar of Trade Marks makes a decision under subsection 40RE(1)

of the Act, the Registrar of Trade Marks must:

(a) notify the other parties in writing; and

(b) continue the proceedings if requested to do so by another party, in writing,

no later than 1 month after the date of the notice.

Note: If no party makes a request, the Registrar of Trade Marks must decide that the ground

of objection continues to exist: see section 53.

53 Decision by Registrar of Trade Marks

(1) Subject to this section, the Registrar of Trade Marks must, as soon as practicable

after all periods for the filing of evidence or requesting conduct of a hearing have

ended (and, if a hearing is requested, after the hearing has been held), make a

decision under subsection 40RE(1) of the Act by considering:

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(a) the evidence filed by the parties; and

(b) if a hearing has been held—representations and material from the hearing

and any written submissions by the parties; and

(2) If:

(a) the objection relates to a registered trade mark; and

(b) the registered trade mark is the subject of removal or cancellation

proceedings;

the Registrar of Trade Marks must not make a decision under

subsection 40RE(1) of the Act until the removal or cancellation proceedings are

complete.

(3) The Registrar of Trade Marks must decide that the ground of objection continues

to exist if no party files evidence within the period mentioned in

paragraph 47(1)(c).

(4) The Registrar of Trade Marks must decide that the ground of objection continues

to exist if:

(a) the applicant under paragraph 40RE(1)(b) of the Act withdraws the

application; and

(b) no other party makes a request to continue the proceedings under

section 52 of this instrument.

54 Notice of decision

(1) The Registrar of Trade Marks must, in writing, inform the Geographical

Indications Committee and each party of the Registrar of Trade Mark’s decision.

(2) After receiving notice of a decision from the Registrar of Trade Marks, the

Presiding Member of the Committee must publish a notice:

(a) setting out the proposed GI; and

(b) stating that a decision of the Registrar of Trade Marks has been made in

relation to the proposed GI; and

(3) The notice under subsection (2) is to be published in the manner that the

Committee thinks appropriate.

55 Fees

In proceedings mentioned in this Division, the fee specified in column 2 of an

item in the following table is payable to the Registrar of Trade Marks in respect

of a matter specified in column 1 of the item.

Fees for proceedings mentioned in this Division

Column 1 Column 2

Item Matter Fee

1 Dealing with an application made under $500

paragraph 40RE(1)(b) of the Act

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Fees for proceedings mentioned in this Division

Column 1 Column 2

Item Matter Fee

2 Filing evidence under section 47, 48 or 49 (that is, $375

evidence in support, evidence in answer or new evidence)

3 Requesting a hearing under section 50 $500

Attendance at a hearing $500 per day or part of a day, but

any amount paid by the party

under item 3 in relation to the

hearing is deducted from the total

5 Applying to file new evidence under section 49 $100

56 Costs

The Registrar of Trade Marks must not make an order for costs in proceedings

mentioned in this Division.

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Section 57

Division 4—Criteria for determining Australian GIs

57 Criteria for determining geographical indications

Determining the area and identifying its boundaries

(1) For the purposes of subsection 40T(2) of the Act, the Geographical Indications

Committee is to have regard to the following criteria in deciding whether to

determine an area, and in identifying the boundaries of the area:

(a) whether the area usually produces at least 500 tonnes of wine grapes in a

year;

(b) whether the area includes at least 5 wine grape vineyards of at least 5

hectares each that do not have any common ownership (whether or not it

also includes smaller vineyards);

(d) the degree to which the grape growing attributes of the area are:

(i) uniform; and

(ii) different from the grape growing attributes of neighbouring areas;

(e) the history of the founding and development of the area (as ascertained

from local government records, newspaper archives, books, maps or other

relevant materian( �

(f) natural features within or near the area, including rivers, valleys, hills and

other topographical features;

(g) constructed features within or near the area, including roads, railways,

towns and buildings;

(h) if an application was made to the Committee under section 40R of the

Act—the boundary of the area suggested in the application;

(i) the degree to which the geological formation of the area is:

(i) uniform; and

(ii) different from the geological formation of neighbouring areas;

(j) the degree to which the climate of the area is uniform, having regard to the

temperature, atmospheric pressure, humidity, rainfall, number of hours of

sunshine and any other weather conditions experienced in the area

throughout the year;

(k) whether the date on which harvesting a particular variety of wine grapes is

expected to begin in the area is the same as the date on which harvesting

grapes of the same variety is expected to begin in neighbouring areas;

(l) whether all of the area is within a natural drainage basin;

(m) whether water is available from an irrigation scheme:

(i) to a similar extent throughout the area; and

(ii) to a different extent compared to availability in neighbouring areas;

(n) the degree to which the elevation of the area is:

(i) uniform; and

(ii) different from the elevation of neighbouring areas;

(o) whether there are any plans for the development of the area proposed by

Commonwealth, State or municipal authorities and, if so, whether the

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development would affect the uniformity of the area or its distinctness from

neighbouring areas;

(p) whether there are any relevant traditional divisions within the area;

(q) whether there is a common history of grape and wine production in the

area, and whether this differs from the history in neighbouring areas.

Note: In determining a geographical indication under subsection 40Q(1) of the Act, the

Committee is not prohibited under the Act from having regard to any other relevant

matters.

(2) For the purposes of paragraph (1)(b), a wine grape vineyard means a single

parcel of land that is planted with wine grapes and operated as a single entity by:

(a) the owner; or

(b) a manager on behalf of the owner or a lessee (regardless of the number of

lessees).

(3) In considering the degree of uniformity of an area with respect to attributes

mentioned in subsection (1), the Committee is to have regard to the size of the

area.

(4) In deciding whether to determine an area that:

(a) is part of a larger area for which a geographical indication has previously

been determined; or

(b) includes a smaller area for which a geographical indication has previously

been determined;

the Committee is to have regard to the degree of uniformity of the smaller of the

2 areas compared to the larger, and the distinct attributes of the smaller area.

(5) Without limiting the way in which the Committee may identify the boundaries of

an area, the Committee may use:

(a) ordinance survey map grid references; or

(b) local government boundary maps.

Determining the indication to be used

(6) For the purposes of subsection 40T(2) of the Act, the Committee is to have

regard to the following criteria in determining a word or expression as the

indication to be used to indicate an area:

(a) any history relating to the word or expression;

(b) whether, and to what extent, the word or expression is known to wine

retailers beyond the boundaries of the area;

used in the area or elsewhere;

(d) the appropriateness of the word or expression.

Note: In determining a geographical indication under subsection 40Q(1) of the Act, the

Committee is not prohibited under the Act from having regard to any other relevant

matters.

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Section 58

Part 7—Determination of foreign GIs and translations of

foreign GIs

Division 1—Preliminary

58 Simplified outline of this Part

This Part sets out the procedure for including geographical indications that relate

to foreign countries on the Register of Protected Geographical Indications and

Other Terms. Translations of foreign geographical indications can also be

included on the Register.

The procedure is as follows:

An application for determination of a GI or translation is made to the Geographical Indications

Committee.

An objection to the proposal may be made to the Registrar of Trade Marks on grounds relating

to trade mark rights or existing usage of the proposed term (see Division 2).

Is an objection made?

Does the Registrar of Trade Marks

decide that the ground of objection is

made out (see Division 3)?

Do any of the following occur?

(a) the person who made the objection

agrees to the inclusion of the proposed

GI or proposed translation in the

(b) the Registrar of Trade Marks makes a

recommendation to the Geographical

Indications Committee that it proceed

despite the objection;

decides that the ground of objection no

longer exists (see Division 4).

The Geographical Indications Committee

may make an interim determination (see

Division 6).

The Geographical Indications Committee

must invite submissions on the interim

determination.

The Geographical Indications Committee

may make a final determination to

include the proposed GI or proposed

translation in the Register.

The Geographical Indications Committee

cannot decide to include the proposed

GI or proposed translation in the

Yes

YesNo

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Decisions of the Registrar of Trade Marks can be appealed to the Federal Court

(see Division 5). The final determination of the Geographic Indications

Committee is reviewable by the Administrative Appeals Tribunal (see

section 98).

59 Purpose of Part

For the purposes of subsection 40ZAQ(1) of the Act, this Part (other than

Division 5) makes provision for the determination of geographical indications,

and translations of geographical indications, in relation to wine originating in a

foreign country.

60 Applications for determination

(1) A person may apply in writing to the Geographical Indications Committee for

the determination of a GI in relation to a foreign country or a region or locality in

a foreign country.

(2) A person may apply in writing to the Committee for the determination of a

translation of a GI in relation to a foreign country or a region or locality in a

foreign country.

(3) An application under subsection (2) for the determination of a translation of a GI

may be made:

(a) after the GI is registered; or

(b) at the same time as an application under subsection (1) for the

determination of the GI.

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Section 61

Division 2—Objections to determination of foreign GIs and

translations of foreign GIs

61 Notice to be given of proposed foreign GI or translation of foreign GI

(1) The Presiding Member of the Geographical Indications Committee must publish

a notice if:

(a) an application has been made under subsection 60(1) for the determination

of a GI (the proposed item); or

(b) an application has been made under subsection 60(2) for the determination

of a translation of a GI (the proposed item).

(2) The notice must:

(a) set out the proposed item; and

(b) invite persons to make written objections to the Registrar of Trade Marks

in relation to the proposed item on a ground set out in section 62; and

stated in the notice.

(3) If applications for determination of a GI and translation of the GI are made at the

same time, the Presiding Member may publish a single notice in relation to both

applications.

62 Grounds of objection to determination of foreign GI or translation of foreign

Registered owner of a registered trade mark

(1) The registered owner of a registered trade mark may object to the determination

of a proposed item on one of the following grounds:

(a) that the trade mark consists of a word, expression or other indication that is

identical to the proposed item;

(b) that:

(i) the trade mark consists of a word, expression or other indication; and

(ii) the proposed item is likely to cause confusion with that word,

expression or other indication;

(i) the trade mark contains a word, expression or other indication; and

(ii) the proposed item is likely to cause confusion with that word,

expression or other indication; and

(iii) the owner has trade mark rights in that word, expression or other

indication.

(2) The owner may object on the ground specified in paragraph (1)(c) even if there

are conditions or limitations entered on the Register of Trade Marks suggesting

that the owner does not have trade mark rights to that word, expression or other

indication.

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Section 62

Trade mark pending

(3) If a person has an application pending for the registration of a trade mark under

the Trade Marks Act 1995, the person may object to the determination of a

proposed item on one of the following grounds:

(a) that:

(i) the application was made in good faith; and

(ii) the trade mark consists of a word, expression or other indication that

is identical to the proposed item; and

(iii) it appears that the requirements under the Trade Marks Act 1995 for

accepting an application for registration of a trade mark would be

satisfied in respect of the trade mark applied for;

(b) that:

(i) the application was made in good faith; and

(ii) the trade mark consists of a word, expression or other indication; and

(iii) the proposed item is likely to cause confusion with that word,

expression or other indication; and

(iv) it appears that the requirements under the Trade Marks Act 1995 for

accepting an application for registration of a trade mark would be

satisfied in respect of the trade mark applied for;

(i) the application was made in good faith; and

(ii) the trade mark contains a word, expression or other indication; and

(iii) the proposed item is likely to cause confusion with that word,

expression or other indication; and

(iv) it appears that the requirements under the Trade Marks Act 1995 for

accepting an application for registration of a trade mark would be

satisfied in respect of the trade mark applied for; and

(v) after registration, the applicant would have trade mark rights in the

word, expression or other indication.

Trade mark not registered

(4) If a person claims to have trade mark rights in a trade mark that is not registered,

the person may object to the determination of a proposed item on one of the

following grounds:

(a) that:

(i) the trade mark consists of a word, expression or other indication that

is identical to the proposed item; and

(ii) the person has trade mark rights in that word, expression or other

indication; and

(iii) the rights were acquired through use in good faith;

(b) that:

(i) the trade mark consists of or contains a word, expression or other

indication; and

(ii) the proposed item is likely to cause confusion with that word,

expression or other indication; and

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(iii) the person has trade mark rights in that word, expression or other

indication; and

(iv) the rights were acquired through use in good faith.

Common use

(5) A person may object to the determination of a proposed item on the ground that

the proposed item is used in Australia:

(a) as the common name of a type or style of wine; or

(b) as the name of a variety of grapes.

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Division 3—Consideration of objections to determination of foreign

GIs or translation of foreign GIs

63 Application of this Division

This Division sets out the procedure to be followed if:

(a) the Registrar of Trade Marks receives an objection in relation to a proposed

item on a ground that is set out in section 62; and

(b) the objection is received within the period stated in the notice published

under section 61 in relation to the proposed item.

64 Notice of objection

The Registrar of Trade Marks must notify the Geographical Indications

Committee in writing of the receipt and terms of the objection.

65 Parties to proceedings

Each of the following is a party in relation to consideration of the objection:

(a) the person who made the objection;

(b) the applicant under section 60 for determination of the proposed item.

66 Evidence in relation to ground of objection and recommendation

(1) The Registrar of Trade Marks must send each party a written notice that:

(a) gives the name and address of the other party; and

(b) invites the party to file evidence relevant to whether the Registrar of Trade

Marks should:

(i) decide the ground of objection is or is not made out; or

(ii) recommend to the Geographical Indications Committee that the

proposed GI be determined despite the objection having been made

out; and

date of the notice.

(2) The Registrar of Trade Marks must not send the notices until:

(a) the Registrar of Trade Marks has notified the Geographical Indications

Committee of the objection under section 64; and

(b) the person who made the objection has paid the fee prescribed by

section 74 for dealing with the objection.

67 Evidence in answer

(1) If a party files evidence in response to a notice sent under section 66, the

Registrar of Trade Marks must send the other party a written notice that:

(a) invites the other party to file evidence in answer; and

(b) states the period from the date of the notice in which evidence in answer

may be filed.

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(2) The period stated for the purposes of paragraph (1)(b) must be at least 2 months.

(3) The Registrar of Trade Marks must also notify both parties, in writing, of the

date by which a request for a hearing under section 69 must be made.

68 New evidence

(1) A party may apply to the Registrar of Trade Marks, in writing, to file new

evidence:

(a) after the end of a period specified by the Registrar of Trade Marks for the

party to file evidence; and

(b) before the Registrar of Trade Marks makes a decision under section 71.

(2) An application must:

(a) be accompanied by the fee prescribed by section 74; and

(b) include a statement:

(i) describing the new evidence; and

(ii) giving the reasons why the new evidence was not filed within the

specified period.

(3) If, after considering the application, the Registrar of Trade Marks decides that it

is reasonable to allow the filing of the new evidence, he or she must:

(a) set a date by which the new evidence must be filed; and

(b) notify the applying party of the date in writing.

(4) If the Registrar of Trade Marks decides that it is not reasonable to allow the

filing of the new evidence, he or she must notify the applying party in writing

that new evidence may not be filed.

Evidence in answer to new evidence

(5) If the new evidence is filed by the date set under subsection (3), the Registrar of

Trade Marks must send a written notice to the other party that:

(a) tells the other party that the new evidence is filed; and

(b) sets a reasonable period for the party to file evidence in answer to it.

(6) The Registrar of Trade Marks must also notify both parties, in writing, of the

date by which a request for a hearing under section 69 must be made.

69 Hearing and submissions

(1) If at least one notice is given under section 67 or subsection 68(5), any party may

ask the Registrar of Trade Marks to conduct a hearing.

(2) The request must be made in writing to the Registrar of Trade Marks no later

than 1 month after the last day on which evidence may be filed in accordance

with any notice given under section 67 or subsection 68(5).

(3) The request must be accompanied by the fee prescribed by section 74.

(4) If the Registrar of Trade Marks receives a request in accordance with

subsections (1) to (3), he or she must:

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(a) send each party a written notice that:

(i) informs the party a hearing will be held; and

(ii) invites written submissions to be made before the hearing; and

(b) conduct a hearing.

(5) If:

(a) the objection was made on a ground mentioned in subsection 62(1); and

(b) the registered trade mark concerned is the subject of removal or

cancellation proceedings;

the Registrar of Trade Marks must not conduct the hearing until the removal or

cancellation proceedings are complete.

(6) The fee prescribed by section 74 for attendance at a hearing is payable by each

party that attends the hearing.

70 Parties must give copies of evidence to each other and pay filing fee

Evidence in relation to proceedings mentioned in this Division is not taken to be

validly filed unless the party filing the evidence:

(a) gives a copy of the evidence to the other party; and

(b) includes, with the evidence being filed, a statement setting out when and

how a copy was given to the other party; and

71 Decision by Registrar of Trade Marks

(1) Subject to this section, the Registrar of Trade Marks must, as soon as practicable

after all periods for the filing of evidence or requesting conduct of a hearing have

ended (and, if a hearing is requested, after the hearing has been held), make a

decision in writing whether the ground of objection is or is not made out by

considering:

(a) the notice published under section 61; and

(b) the objection; and

(d) if a hearing has been held—representations and material from the hearing

and any written submissions by the parties; and

(e) any other matter that the Registrar of Trade Marks considers relevant.

(2) If:

(a) the objection was made on a ground mentioned in subsection 62(1); and

(b) the registered trade mark concerned is the subject of removal or

cancellation proceedings;

the Registrar of Trade Marks must not make a decision under subsection (1) until

the removal or cancellation proceedings are complete.

(3) The Registrar of Trade Marks must decide that the ground of objection is not

made out if:

(a) the person objecting to the proposed item does not file any evidence within

the period mentioned in paragraph 66(1)(c); or

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(b) the person objecting to the proposed item withdraws the notice of objection

before the Registrar of Trade Marks makes a decision about the objection.

72 Recommendation by Registrar of Trade Marks to determine foreign GI or

translation of foreign GI despite objection being made out

(1) If:

(a) the Registrar of Trade Marks decides that the ground of objection is made

out; and

(b) the Registrar of Trade Marks is satisfied that it is reasonable in the

circumstances to recommend to the Geographical Indications Committee

that the proposed item be determined despite the objection having been

made out;

the Registrar of Trade Marks may make that recommendation to the Committee

in writing.

Note 1: For example, it may be reasonable for the Registrar of Trade Marks to make such a

recommendation if the Registrar of Trade Marks is satisfied that the proposed item was

in use in Australia before the trade mark rights arose.

Note 2: If a recommendation is made under this section, the Committee may determine a GI or

a translation of a GI: see subsection 90(5).

(2) In determining whether it is reasonable in the circumstances to make the

recommendation, the Registrar of Trade Marks must have regard to Australia’s

international obligations.

73 Notice of decision

(1) The Registrar of Trade Marks must, in writing, inform the Geographical

Indications Committee and each party of the Registrar of Trade Marks’s decision

in relation to the objection under section 71 and any recommendation that has

been made under section 72.

(2) After receiving notice of a decision, the Presiding Member of the Committee

must publish a notice:

(a) setting out the proposed item; and

(b) stating that a decision of the Registrar of Trade Marks has been made in

relation to the proposed item; and

recommendation made under section 72 in relation to the proposed item.

(3) The notice under subsection (2) is to be published in the manner that the

Committee thinks appropriate.

74 Fees

In proceedings mentioned in this Division, the fee specified in column 2 of an

item in the following table is payable to the Registrar of Trade Marks in respect

of a matter specified in column 1 of the item.

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Fees for proceedings mentioned in this Division

Column 1 Column 2

Item Matter Fee

1 Dealing with an objection $500

2 Filing evidence under section 66, 67 or 68 (that is, $375

evidence in support, evidence in answer or new evidence)

3 Requesting a hearing under section 69 $500

Attendance at a hearing $500 per day or part of a day, but

any amount paid by the party

under item 3 in relation to the

hearing is deducted from the total

5 Applying to file new evidence under section 68 $100

75 Costs

The Registrar of Trade Marks must not make an order for costs in proceedings

mentioned in this Division.

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Section 76

Division 4—Decision that ground of objection to proposed item no

longer exists

76 Application for decision

If the Registrar of Trade Marks has made a decision under section 71 that a

ground of objection to a proposed item has been made out, a person may apply in

writing to the Registrar of Trade Marks for a decision that circumstances have

changed since that decision was made, such that the ground of objection no

longer exists.

77 Notice of application

If the Registrar of Trade Marks receives an application under section 76, the

Registrar of Trade Marks must notify the Geographical Indications Committee in

writing of the receipt and terms of the application.

78 Parties to proceedings

Each of the following is a party in relation to determination of an application

under section 76:

(a) the person who made the application;

(b) if the objection was made on a ground in subsection 62(1), (3) or (4)—the

owner of the trade mark concerned;

who made the objection;

(d) if the applicant for the determination of the proposed item was not the

person mentioned in paragraph (a)—the applicant for the determination of

the proposed item.

79 Evidence relevant to whether ground of objection no longer exists

(1) The Registrar of Trade Marks must send each party a written notice that:

(a) gives the name and address of each other party; and

(b) invites the party to file evidence relevant to whether the Registrar of Trade

Marks should decide that the ground of objection no longer exists; and

date of the notice.

(2) The Registrar of Trade Marks must not send the notices until:

(a) the Registrar of Trade Marks has notified the Geographical Indications

Committee of the application under section 77; and

(b) the person who made the application under section 76 has paid the fee

prescribed by section 87 for dealing with the application.

80 Evidence in answer

(1) If a party files evidence in response to a notice sent under section 79, the

Registrar of Trade Marks must send each other party a written notice that:

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(a) invites the other party to file evidence in answer; and

(b) states the period from the date of the notice in which evidence in answer

may be filed.

(2) The period stated for the purposes of paragraph (1)(b) must be at least 2 months.

(3) The Registrar of Trade Marks must also notify all parties, in writing, of the date

by which a request for a hearing under section 82 must be made.

81 New evidence

(1) A party may apply to the Registrar of Trade Marks, in writing, to file new

evidence:

(a) after the end of a period specified by the Registrar of Trade Marks for the

party to file evidence; and

(b) before the Registrar of Trade Marks makes a decision under section 85.

(2) An application must:

(a) be accompanied by the fee prescribed by section 87; and

(b) include a statement:

(i) describing the new evidence; and

(ii) giving the reasons why the new evidence was not filed within the

specified period.

(3) If, after considering the application, the Registrar of Trade Marks decides that it

is reasonable to allow the filing of the new evidence, he or she must:

(a) set a date by which the new evidence must be filed; and

(b) notify the applying party of the date in writing.

(4) If the Registrar of Trade Marks decides that it is not reasonable to allow the

filing of the new evidence, he or she must notify the applying party in writing

that new evidence may not be filed.

Evidence in answer to new evidence

(5) If the new evidence is filed by the date set under subsection (3), the Registrar of

Trade Marks must send a written notice to the other parties that:

(a) tells the other parties that the new evidence is filed; and

(b) sets a reasonable period for the parties to file evidence in answer to it.

(6) The Registrar of Trade Marks must also notify all parties, in writing, of the date

by which a request for a hearing under section 82 must be made.

82 Hearing and submissions

(1) If at least one notice is given under section 80 or subsection 81(5), any party may

ask the Registrar of Trade Marks to conduct a hearing.

(2) The request must be made in writing to the Registrar of Trade Marks no later

than 1 month after the last day on which evidence may be filed in accordance

with any notice given under section 80 or subsection 81(5).

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(3) The request must be accompanied by the fee prescribed by section 87.

(4) If the Registrar of Trade Marks receives a request under subsection (1), he or she

must:

(a) send each party a written notice that:

(i) informs the party a hearing will be held; and

(ii) invites written submissions to be made before the hearing; and

(b) conduct a hearing.

(5) If:

(a) the objection relates to a registered trade mark; and

(b) the registered trade mark is the subject of removal or cancellation

proceedings;

the Registrar of Trade Marks must not conduct a hearing until the removal or

cancellation proceedings are complete.

(6) The fee prescribed by section 87 for attendance at a hearing is payable by each

party that attends the hearing.

83 Parties must give copies of evidence to each other and pay filing fee

Evidence in relation to proceedings mentioned in this Division is not taken to be

validly filed unless the party filing the evidence:

(a) gives a copy of the evidence to each other party; and

(b) includes, with the evidence being filed, a statement setting out when and

how a copy was given to each other party; and

84 Withdrawal of application

If the applicant under section 76 withdraws the application before the Registrar

of Trade Marks makes a decision under section 85, the Registrar of Trade Marks

must:

(a) notify the other parties in writing; and

(b) continue the proceedings if requested to do so by another party, in writing,

no later than 1 month after the date of the notice.

Note: If no party makes a request, the Registrar of Trade Marks must decide that the ground

of objection continues to exist: see section 85.

85 Decision by Registrar of Trade Marks

(1) Subject to this section, the Registrar of Trade Marks must, as soon as practicable

after all periods for the filing of evidence or requesting conduct of a hearing have

ended (and, if a hearing is requested, after the hearing has been held), decide

whether the ground of objection no longer exists by considering:

(a) the evidence filed by the parties; and

(b) if a hearing has been held—representations and material from the hearing

and any written submissions by the parties; and

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(2) If:

(a) the objection relates to a registered trade mark; and

(b) the registered trade mark is the subject of removal or cancellation

proceedings;

the Registrar of Trade Marks must not make a decision under subsection (1) until

the removal or cancellation proceedings are complete.

(3) The Registrar of Trade Marks must decide that the ground of objection continues

to exist if no party files evidence within the period mentioned in

paragraph 79(1)(c).

(4) The Registrar of Trade Marks must decide that the ground of objection continues

to exist if:

(a) the applicant under section 76 withdraws the application; and

(b) no other party makes a request to continue the proceedings under

section 84.

86 Notice of decision

(1) The Registrar of Trade Marks must, in writing, inform the Geographical

Indications Committee and each party of the Registrar of Trade Marks’s

decision.

(2) After receiving notice of a decision from the Registrar of Trade Marks, the

Presiding Member of the Committee must publish a notice:

(a) setting out the proposed item; and

(b) stating that a decision of the Registrar of Trade Marks has been made in

relation to the proposed item; and

(3) The notice under subsection (2) is to be published in the manner that the

Committee thinks appropriate.

87 Fees

In proceedings mentioned in this Division, the fee specified in column 2 of an

item in the following table is payable to the Registrar of Trade Marks in respect

of a matter specified in column 1 of the item.

Fees for proceedings mentioned in this Division

Column 1 Column 2

Item Matter Fee

1 Making an application for a decision under section 76 $500

2 Filing evidence under section 79, 80 or 81 (that is, $375

evidence in support, evidence in answer or new evidence)

3 Requesting a hearing under section 82 $500

Attendance at a hearing $500 per day or part of a day, but

any amount paid by the party

under item 3 in relation to the

hearing is deducted from the total

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Column 1 Column 2

Item Matter Fee

5 Applying to file new evidence under section 81 $100

88 Costs

The Registrar of Trade Marks must not make an order for costs in proceedings

mentioned in this Division.

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Section 89

Division 5—Appeals against decisions of Registrar of Trade Marks

89 Decisions appellable to Federal Court

For the purposes of subsection 40ZAR(1) of the Act, decisions of the Registrar

of Trade Marks made under the following provisions of this instrument are

prescribed:

(a) subsection 71(1) (a decision that a ground of objection is or is not made

out);

(b) subsection 72(1) (a recommendation that a proposed item be determined or

a refusal to make such a recommendation);

refusal to make such a decision).

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Division 6—Determination of foreign GIs and translations of foreign

GIs

90 When Geographical Indications Committee may proceed to make a

determination

(1) The Geographical Indications Committee may determine a GI or translation of a

GI if no objection on a ground set out in section 62 was made to the proposed

item within the period stated in the notice published under section 61 in relation

to the proposed item.

(2) If an objection was made, the Committee:

(a) must not proceed to make a determination until the Committee has, in

accordance with subsection 73(2), published a notice of the Registrar of

Trade Mark’s decision on the objection; and

(b) may only make a determination in the circumstances set out in the

following subsections.

Ground of objection not made out

(3) The Committee may determine a GI or translation of a GI that was the subject of

a decision under section 71 if:

(a) all appeals against, or reviews of, the decision in relation to the proposed

item have been finalised; and

(b) the decision standing after the appeals and reviews have been finalised is

that a ground of objection has not been made out in relation to the proposed

item.

Ground of objection made out and person agrees to determination being made

(4) The Committee may determine a GI or translation of a GI that is the subject of a

decision that a ground of objection has been made out, if the person who

objected to the determination of the proposed item has agreed, by notice in

writing given to the Committee, to the determination of the proposed item.

Ground of objection made out and a recommendation is made under section 72

(5) The Committee may determine a GI or translation of a GI that is the subject of a

decision that a ground of objection has been made out, if:

(a) a recommendation has been made to the Committee under section 72 that

the proposed item should be determined despite the ground of objection

having been made out; and

(b) all appeals against, or reviews of, the decision to make that

recommendation have been finalised; and

that the recommendation is made.

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Section 91

Ground of objection made out and decision made under section 85

(6) The Committee may determine a GI or translation of a GI that is the subject of a

decision that a ground of objection has been made out, if:

(a) a decision has been made under section 85 that the ground of objection no

longer exists; and

(b) all appeals against, or reviews of, the decision that the ground no longer

exists have been finalised; and

that the ground no longer exists.

No determination of translation without corresponding GI

(7) However, the Committee must not determine a translation of a GI if:

(a) the application for determination of the translation under subsection 60(2)

was made at the same time as an application for determination of the GI

was made under subsection 60(1); and

(b) the Committee is not permitted under this section to proceed to determine

the GI.

91 Consultation by Geographical Indications Committee

In determining a GI or translation of a GI, the Geographical Indications

Committee may consult any organisation or person it thinks appropriate.

92 Determining foreign GIs

(1) In determining a GI, the Geographical Indications Committee must:

(a) identify in the determination the boundaries of the area or areas in the

region or locality to which the determination relates; and

(b) determine the indication to be used to indicate that area or those areas; and

(2) The Committee must not:

(a) determine a GI that is different from the GI proposed in the application

under subsection 60(1); or

(b) determine boundaries different from those proposed in the application.

(3) The Committee must have regard to whether the GI is protected by the laws of

the country where the area is located.

(4) The Committee may have regard to any other matter it considers relevant.

(5) However, the Committee must not consider any submission to the extent that the

submission asserts a trade mark right in respect of the proposed GI.

93 Determining translations

(1) In determining a translation of a GI, the Geographical Indications Committee

must:

(a) identify the GI to which the translation relates; and

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(b) determine the translation to be used; and

(2) The Committee must not determine a different translation to the translation that

was proposed in the application under subsection 60(2).

(3) The Committee:

(a) must consider whether the translation conveys or evokes the significance of

the GI to which it relates; and

(b) may consider any other matter it considers relevant.

(4) However, the Committee must not consider any submission to the extent that the

submission asserts a trade mark right in respect of the proposed translation.

94 Interim determination

(1) A determination by the Geographical Indications Committee under section 92 or

93 is to be an interim determination in the first instance.

(2) An interim determination does not have effect.

95 Publication of notice of interim determination

(1) The Presiding Member of the Geographical Indications Committee must publish

a notice, stating that the interim determination has been made and setting out the

terms of the determination, in any manner that the Committee thinks appropriate.

(2) The notice must invite persons to make written submissions to the Committee in

relation to the determination within a period of not less than 1 month that is

stated in the notice.

(3) If interim determinations are made of both a GI and a translation of the GI, the

Presiding Member may publish a single notice in relation to both determinations.

96 Final determination

After considering any submissions made to it, the Geographical Indications

Committee may make a final determination.

97 Publication of notice of final determination

(1) The Presiding Member of the Geographical Indications Committee must publish

a notice, stating that a final determination has been made and setting out the

terms of the determination, in any manner that the Committee thinks appropriate.

(2) The Presiding Member of the Geographical Indications Committee must also

give the notice to:

(a) the person who applied for the determination under section 60; and

(b) any person who made an objection to the proposed item that was

considered by the Register of Trade Marks under Division 3.

(3) The notice must include a statement to the effect that:

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(a) subject to the Administrative Appeals Tribunal Act 1975, application may

be made, by or on behalf of any person whose interests are affected by the

determination, to the Administrative Appeals Tribunal for review of the

determination; and

(b) unless subsection 28(4) of that Act applies, application may be made in

accordance with section 28 of that Act by or on behalf of that person for a

statement in writing setting out the findings on material questions of fact,

referring to the evidence or other material on which those findings were

based and giving the reasons for the determination; and

before the final determination:

(i) no application to the Administrative Appeals Tribunal may be made

in respect of that decision; and

(ii) an appeal lies to the Federal Court in respect of that decision under

section 89 of this instrument.

(4) If final determinations are made of both a GI and a translation of the GI, the

Presiding Member may publish a single notice in relation to both determinations.

(5) Any failure to comply with subsection (3) in relation to a determination does not

affect the validity of the determination.

98 Review of final determination

(1) Applications may be made to the Administrative Appeals Tribunal for review of

final determinations made by the Geographical Indications Committee under

section 96.

Note: Under section 89, an appeal lies to the Federal Court from a decision under section 71,

72 or 85.

(2) Despite paragraph 29(1)(d) and subsection 29(2) of the Administrative Appeals

Tribunal Act 1975, an application to the Tribunal for review of a final

determination must be made within 28 days after notice of the determination is

published in accordance with section 97 of this instrument.

(3) Despite subsection 29(8) of the Administrative Appeals Tribunal Act 1975, an

application under subsection 29(7) of that Act in respect of a final determination

must be made before the time fixed by subsection (2) of this section ends.

99 Date of effect of final determination

(1) The Presiding Member of the Geographical Indications Committee must give a

copy of a final determination made under section 96 to the Registrar so that

particulars of the determination can be included in the Register:

(a) if an application is made to the Administrative Appeals Tribunal under

section 98 for review of the determination—as soon as practicable after the

decision of the Tribunal on the review is given; or

(b) otherwise—as soon as practicable after the 28th day after notice of the

determination is published in accordance with section 97.

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(2) When the Presiding Member gives a copy of a final determination to the

Registrar, the Presiding Member must also give a copy to the Chair of the

Authority.

(3) A final determination of the Committee takes effect on the day on which

particulars of the determination are included in the Register.

(4) However, a final determination in relation to a translation of a GI does not take

effect, and particulars must not be included in the Register, if the GI to which it

relates is not included in the Register.

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Division 1 Preliminary

Section 100

Part 8—Omission from the Register of foreign GIs and

translations of foreign GIs

Division 1—Preliminary

100 Simplified outline of this Part

This Part sets out the procedure for omitting geographical indications that relate

to foreign countries, and translations of those geographical indications, from the

There are 2 grounds on which a person may apply to the Geographical

Indications Committee for a decision to omit a GI. The first ground is that the GI

is not in use, because wine is not being produced in the area to which the GI

relates. The second ground is that the GI is no longer protected in the country of

origin. Under both grounds, the Committee must also consider the use of the GI

in the sale of wine in Australia.

A person may also apply to the Committee for a separate decision to omit a

translation, on the ground that the translation no longer conveys or evokes the

significance of the GI for which it was registered.

If it receives an application, the Committee must publish a notice inviting

submissions.

Determinations made by the Committee on the ground of non-use (for GIs) or

loss of significance (for translations) are reviewable by the Administrative

Appeals Tribunal.

101 Purpose of Part

For the purposes of subsection 40ZAT(1) of the Act, this Part provides for the

omission from the Register of registered geographical indications, and registered

translations of such indications, in relation to a foreign country or a region or

locality in a foreign country.

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Section 102

Division 2—Omission for non-use or loss of significance

102 Application for omission of foreign GI or translation of foreign GI

(1) A person may apply to the Geographical Indications Committee to omit from the

country, on the ground that the GI is not in use.

(2) If an application is made to omit a GI from the Register, and a translation of that

GI is included in the Register, the application is taken to be for omission of both

the GI and the translation.

(3) A person may apply to the Committee to omit a registered translation from the

significance of the GI for which it was registered.

103 Further information concerning application

(1) For the purposes of determining an application made under section 102, the

Geographical Indications Committee may, by notice in writing, require the

applicant to provide such further information as the Committee directs, within

the period specified in the notice.

(2) If the applicant does not comply with this requirement, the application is taken to

have been withdrawn.

(3) The notice must include a statement about the effect of subsection (2).

104 Notice by Geographical Indications Committee

If the Geographical Indications Committee receives an application under

section 102, the Presiding Member of the Committee must publish a notice in the

manner that the Committee thinks appropriate:

(a) setting out the registered GI, registered translation of a GI, or both, that the

application under section 102 relates to; and

(b) stating that an application under section 102 has been made; and

to the application within the period of not less than 1 month that is stated in

the notice.

105 Determination by Geographical Indications Committee

(1) After considering any submissions made to it in response to a notice under

section 104, the Geographical Indications Committee must determine whether to

omit the registered GI, registered translation of a GI, or both, that the application

under section 102 relates to.

Omission of GI

(2) The Committee may, in writing, make a determination to omit a GI if the

Committee is satisfied of the following matters:

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(a) that the GI has been registered for more than 5 years before the date of the

notice under section 104;

(b) that the GI has not been used during the 3 years before the date of the

notice under section 104;

locality indicated by the GI that would preclude the making of a

determination to omit the GI from the Register.

(3) For the purposes of paragraph (2)(b), a GI has not been used if:

(a) there has not been a production of wine for commercial use originating in

the country, region or locality indicated by the GI; and

(b) wine originating in the country, region or locality indicated by the GI has

not been described and presented for sale in Australia using the GI or a

registered translation of the GI; and

not been described and presented for sale in the country of origin using the

GI or a registered translation of the GI.

(4) For the purposes of paragraph (2)(c), special circumstances exist if:

(a) the country, region or locality indicated by the GI has been affected by fire,

drought or some other disaster; and

(b) as a result of being so affected, there has not been a production of wine for

commercial use originating in the country, region or locality indicated by

the GI during the 3 years immediately before the date of the notice under

section 104.

Omission of translation of GI

(5) The Committee may, in writing, make a determination to omit a translation of a

GI if the Committee is satisfied that the translation no longer conveys or evokes

the significance of the GI for which it was registered.

(6) If the application under section 102 is for omission of both a GI and its

translation, the Committee may make a determination to omit the translation

without omitting the GI if the Committee is satisfied of the matter in

subsection (5) in relation to the translation.

(7) The Committee must make a determination to omit a translation of a GI if it

makes a determination to omit the GI.

106 Notice of determination

(1) The Presiding Member of the Geographical Indications Committee must:

(a) give a notice of the Committee’s determination to the applicant; and

(b) if the determination made is to omit a GI, a translation of a GI or both a GI

and its translation from the Register—publish a notice setting out the terms

of the determination.

(2) The notice under paragraph (1)(b) is to be published in the manner that the

Committee thinks appropriate.

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107 AAT review of determinations

(1) Applications may be made to the Administrative Appeals Tribunal for review of

determinations made by the Geographical Indications Committee under

section 105.

(2) Despite paragraph 29(1)(d) and subsection 29(2) of the Administrative Appeals

Tribunal Act 1975, an application to the Tribunal for review of a determination

under section 105 of this instrument must be made within 28 days after notice of

the determination is published in accordance with section 106 of this instrument.

(3) Despite subsection 29(8) of the Administrative Appeals Tribunal Act 1975, an

application under subsection 29(7) of that Act in respect of a determination under

section 105 of this instrument must be made before the time fixed by

subsection (2) of this section ends.

108 Date of effect of determination to omit item

(1) If a determination made by the Geographical Indications Committee under

section 105 is a determination to omit a GI, a translation of a GI or both a GI and

its translation from the Register, the Presiding Member of the Committee must

give a copy of the determination to the Registrar so that particulars of the

determination can be omitted from the Register:

(a) if an application is made to the Administrative Appeals Tribunal under

section 107 for review of the determination—as soon as practicable after

the decision of the Tribunal on the review is given; or

(b) otherwise—as soon as practicable after the 28th day after notice of the

determination is published in accordance with section 106.

(2) When the Presiding Member gives a copy of the determination to the Registrar,

the Presiding Member must also give a copy to the Chair of the Authority.

(3) The determination of the Committee takes effect on the day on which particulars

of the item or items are omitted from the Register.

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Division 3 Omission because GI not protected in country of origin and not used in Australia

Section 109

Division 3—Omission because GI not protected in country of origin

and not used in Australia

109 Application for omission of foreign GI

A person may apply to the Geographical Indications Committee to omit from the

country, on the ground that the GI is not protected in the country to which it

relates and is not in use in Australia.

110 Further information concerning application

(1) For the purposes of determining an application made under section 109, the

Geographical Indications Committee may, by notice in writing, require the

applicant to provide such further information as the Committee directs, within

the period specified in the notice.

(2) If the applicant does not comply with this requirement, the application is taken to

have been withdrawn.

(3) The notice must include a statement about the effect of subsection (2).

111 Notice by Geographical Indications Committee

If the Geographical Indications Committee receives an application under

section 109, the Presiding Member of the Committee must publish a notice in the

manner that the Committee thinks appropriate:

(a) stating that an application under section 109 has been made and setting out

the GI; and

(b) inviting persons to make written submissions to the Committee in relation

to the application within the period of not less than 1 month that is stated in

the notice.

112 Determination by Geographical Indications Committee

(1) After considering any submissions made to it in response to a notice under

section 111, the Geographical Indications Committee must determine whether to

omit the GI.

(2) The Committee must make a determination to omit the GI from the Register if it

is satisfied of the following matters:

(a) the GI is not protected by the laws of the country where the area indicated

by the GI is located;

(b) in the 3 years before the date of the notice under section 111, wine

originating in the country, region or locality indicated by the GI has not

been described and presented for sale in Australia using the GI or a

registered translation of the GI.

(3) The Committee must make a determination in writing not to omit the GI from the

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(4) If the Committee makes a determination to omit a GI for which there is a

registered translation, the Committee must also make a determination to omit the

translation.

113 Notice of determination

The Presiding Member of the Geographical Indications Committee must:

(a) give a notice of the Committee’s determination to the applicant; and

(b) publish a notice setting out the terms of the determination in any manner

that the Committee thinks appropriate.

114 Date of effect of determination to omit foreign GI

(1) If the determination made by the Geographical Indications Committee under

section 112 is to omit the GI from the Register, the Presiding Member of the

Committee must give a copy of the determination to the Registrar so that

particulars of the determination can be omitted from the Register as soon as

practicable.

(2) When the Presiding Member gives a copy of the determination to the Registrar,

the Presiding Member must also give a copy to the Chair of the Authority.

(3) The determination of the Committee takes effect on the day on which particulars

of the GI are omitted from the Register.

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Part 9 Miscellaneous

Section 115

Part 9—Miscellaneous

115 Delegation

The Authority may, by writing under its seal, delegate any or all of its powers

under this instrument to an employee of the Authority, except:

(a) this power of delegation; and

(b) the power under section 13 to suspend or cancel a licence.

116 Authority may use computer programs to make decisions

(1) The Authority may arrange for the use, under the Authority’s control, of

computer programs for any purposes for which the Authority may make

decisions under this instrument.

(2) However, the following decisions must not be made by the operation of a

computer program under such an arrangement:

(a) a decision under section 13 to suspend or cancel a licence;

(b) a decision under section 17 to suspend or revoke the approval of a grape

product;

(3) A decision made by the operation of a computer program under such an

arrangement is, for the purposes of this instrument, taken to be a decision made

by the Authority.

(4) If the Authority is satisfied that a decision made by the operation of a computer

program under such an arrangement is incorrect, the Authority may substitute

another decision.

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Transitional provisions Part 10

On commencement Division 1

Section 117

Part 10—Transitional provisions

Division 1—On commencement

117 Export controls

(1) A licence granted under regulation 5 of the Australian Grape and Wine Authority

Regulations 1981 (the old Regulations) that is in force immediately before the

commencement of this instrument is taken to have been granted under section 9

of this instrument.

(2) A licence granted under regulation 5 of the old Regulations that is suspended

under regulation 9 of the old Regulations immediately before the commencement

of this instrument is taken:

(a) to have been granted under section 9 of this instrument; and

(b) suspended under section 13 of this instrument for the same period as it was

suspended under the old Regulations.

(3) An export certificate issued under regulation 7 of the old Regulations is taken to

have been issued under section 20 of this instrument if, immediately before the

commencement of this instrument:

(a) the export certificate had not been revoked; and

(b) the export of grape product for which the certificate was issued had not

occurred.

(4) A grape product is taken to have been approved under section 14 of this

instrument for export by a licensee if:

(a) the licensee applied, under regulation 7 of the old Regulations, for an

export certificate for export of the grape product; and

(b) the Authority issued a certificate on the last such application by the

licensee.

(5) A direction given under regulation 8 of the old Regulations that is in force

immediately before the commencement of this instrument is taken to have been

given under section 22 of this instrument.

118 Determination of GIs

Despite the repeal of the Australian Grape and Wine Authority Regulations 1981

(the old Regulations) by the Wine Australia Legislation Amendment (Repeals

and Consequential Amendments) Regulations 2018:

(a) the old Regulations, as in force immediately before the repeal, continue to

apply in relation to the determination of a GI under Division 4 of Part VIB

of the Act (including any decision under section 40RC of the Act on an

objection) if a notice about the determination was published under

section 40RA of the Act before the repeal; and

(b) the old Regulations, as in force immediately before the repeal, continue to

apply in relation to an application under subsection 40RE(1) of the Act that

was made before the repeal; and

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Part 10 Transitional provisions

Division 1 On commencement

Section 118

continues to apply in relation to the determination of a foreign GI or

translation of a foreign GI (including any decision under Division 3 of that

Part on an objection) if a notice about the determination was published

under regulation 57 of the old Regulations; and

(d) Part 6A of the old Regulations, as in force immediately before the repeal,

continues to apply in relation to an application that was made under

regulation 73, 97 or 104 of the old Regulations.

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Modifications of Division 4 of Part VIB of the Act Schedule 1

Clause 1

Schedule 1—Modifications of Division 4 of Part VIB

of the Act Note: See section 33.

1 Grounds of objection to the determination of a geographical indication

(1) The operation of section 40RB of the Act is modified by adding the additional

ground of objection set out in subclause (2).

Modification

(2) A person may object to the determination of a proposed GI on the ground that the

proposed GI is used in Australia:

(a) as the common name of a type or style of wine; or

(b) as the name of a variety of grapes.

Wine Australia Regulations 2018

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Wine Australia Regulations 2018, Австралия

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