Re: Opposition by The Green Vineyards Pty Ltd to an application under section 92 of the Trade Marks Act 1995 by McWilliam's Wines Group Limited for removal of trade mark number 1471963 (33) - Winemaker's Cut in..

This matter concerned an opposition by The Green Vineyards Pty Ltd (the Opponent) to an application by McWilliam's Wines Group Limited (the Applicant) under section 92 of the *Trade Marks Act 1995* (Cth) for the removal of trade mark number 1471963, known as "Winemaker's Cut". The proceedings were heard by Nicholas Smith, a Hearing Officer.

The legal issue before the court was whether the trade mark "Winemaker's Cut" should be removed from the Register. Specifically, as the trade mark had been registered for more than five years, the court was required to consider the application for removal under section 92(4)(b) of the Act. This required the Opponent to demonstrate that it had used the trade mark in Australia during the relevant period, either through actual use or circumstances that presented an obstacle to use.

The court found that the Opponent had provided sufficient evidence of use of the trade mark. This included a sales report showing sales of 151 bottles of the "2010 Carlei Estate Winemaker’s Cut Shiraz" during the relevant period, evidence of the product being offered for sale at the Opponent's cellar door in 2017, and evidence that purchasers of the product, such as restaurants and bars, were themselves offering it to the public. The court determined that the use of "Winemaker's Cut" in conjunction with "Carlei Estate" and descriptive terms like "2010" and "Shiraz" constituted use of the trade mark with additions or alterations that did not substantially affect its identity.

Consequently, the court decided that the Opponent had satisfied the onus under section 100(3)(a) of the Act by demonstrating use of the trade mark on the registered goods during the relevant period. The opposition to the removal of the trade mark was therefore upheld, and the trade mark was ordered to remain on the Register.