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By Katherine Vincent & Tim Graney at Johnston Withers, Lawyers, Adelaide.

Holding a registered trade mark provides many benefits for a business – the exclusive right to use and licence a brand, legal protection against unauthorised use and from 1 July 2018, it allows certain wine industry participants to claim an exclusive tax rebate.

The Wine Equalisation Tax Rebate

Presently, traders who make, import or sell wine by wholesale have to pay 29% tax on the wholesale value of the wine. However, these traders are potentially entitled to the Wine Equalisation Tax rebate if they are a wine ‘producer’.

Unfortunately, while the rebate was initially designed to support local producers, the broad definition of ‘producer’ has resulted in large industrial manufacturers of unbranded cask and ‘cleanskin’ wine exploiting the rebate. These producers have done so by artificially structuring their businesses to claim multiple rebates at different stages of the production process of the same wine.

The rebate in its present form has had an adverse effect on the industry as it has contributed to excessive wine grape production particularly of low value wine, leading to distortions in the market.

The Changes

In light of these issues the Australian Government has recently introduced legislation to improve the integrity of the rebate by tightening eligibility criteria and better targeting support to small wine producers in rural and regional Australia.

While a number of these changes relate to ownership and other matters, perhaps the most important new requirement is that the rebate is to be limited to producers who sell wine in containers which are branded with an Australian registered trade mark.

Implications

For most traders the recent changes will mean that obtaining a registered trade mark is now non-negotiable, as not only will it provide significant value to their business through brand protection but it is now a requirement for them to be able to claim the substantial tax rebate.

If this impacts you, we urge you to seek registration of your trademark as soon as possible, so that you so are in a position to apply it to the 2018 vintage for the 2018/2019 financial year. It is worth noting that the process can be quite lengthy with a minimum time frame for the registration of a trade mark being 7 ½ months from the date of filing an application.

Contact the author directly by email or by telephone.

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