Various dictionary entries for the word “Kiwi” were put forward the most recent being the Macquarie Dictionary which included a definition of Kiwi as a colloquial term meaning of or relating to New Zealand. Lacheteau had argued that such an entry should not be given significant weight as the Macquarie was written to demonstrate “how Australian English is used”. However, this point was picked up by the Hearing Officer as reflecting the changing nature of English language in Australia and the fact that its usage has become more causal over time. In the case of KIWI CUVEE, the Hearing Officer found that “colloquial and colourful language are more readily used in Australia now that they were 20 years ago and I think that…”Kiwi” is readily susceptible to informal descriptive use, here, in relation to New Zealand wine.”

Noting that a connotation under section 43 “need not be the primary connotation, or the only connotation, so long as the end result is that, on balance, a significant risk of deception or confusion arises”, the Hearing Officer referred to observation of Finn J CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 that there are two broad categories of wine consumers, involved and uninvolved.

Accordingly to the Hearing Officer, to the uninvolved consumer, the trade mark KIWI CUVEE will “look” like a wine label and such a consumer is less likely to assume that (colloquial or otherwise) use of Kiwi is as a description of the origin of the wine. However, more involved or knowledgeable consumers are likely to ask for a wine by reference to a region or country of origin and it these consumers who may be confused by aural usage, on wines lists or other circumstances where brief descriptions are used. Although such an error would most likely be discovered before the wine was purchased, the Hearing Officer stated that the confusion or deception with which section 43 is concerned need not be permanent, nor need it persist up to the point of sale.

Accordingly, the Hearing Officer was satisfied that there was a real and significant risk that confusion will arise through use of the trade mark KIWI CUVEE and therefore that New Zealand Winegrowers has established a ground of opposition under section 43.