Bubbly and burgers
When is Champagne not Champagne? The answer is when it is sparkling wine produced outside the Champagne region of France. Unfair trading is a breach of civil law that covers unfair practices towards consumers. Customers are misled into believing that they are buying goods or services associated with a wellknown, more established business, through the use of confusingly similar trademarks or trade names. In the UK, unfair trading is known as ‘passing off’ and in the USA as ‘palming off’. The protection of a trading name is essential for an established business because associations with a lesser firm can damage a company’s reputation. Nevertheless, some businesses still try to bolster trade by incorporating descriptive elements or imagery from better known, more attractive brands, into their own signs and logos.
The Champagne growers of France have successfully defended the Champagne brand against any sparkling wine produced outside the Champagne region. So, for example, you will not find any Spanish Champagne on the shelves, only Cava. Other sparkling wines barred from describing themselves as Champagne include: Asti (Italy); Espumante (Portugal); Sekt (Germany); and Shiraz (Australia). Sparkling French wines made outside of the Champagne region are termed Crenmant and Mousseaux. All these ‘copycat’ sparkling wines are made by the traditional Champagne method, in which case they are permitted to state MethodeTraditionelle on the label. In the traditional method, the fizz is obtained via a secondary fermentation process inside a sealed bottle. In a budget sparkling wine, the fizz is generated artificially by injecting highpressurecarbondioxide gas into still wine prior to bottling, as per carbonated drinks. Carbonated wines release large bubbles to develop foam that rises and subsides quickly, whereas Champagne releases uniquely fine bubbles that rise slowly to create longlasting foam.
The defence of the Champagne name has not been entirely successful. Elderflower ‘Champagne’ is a favourite nonalcoholic summer drink in the UK. It selfferments to produce Champagnelike foam when the bottle is opened. In 1993, the Thorncroft Vineyards in Surrey, England, successfully defended a passingoff lawsuit when the judge deemed that the risk of damage to the reputation of genuine Champagne was negligible, even though Thorncroft had presented the drink in a champagnestyle bottle with a wired cork. Despite this initial ruling, the decision was overturned in an appeal case a few months later. The judges felt that consumers might believe that the drink was a nonalcoholic version of Champagne, and that to maintain its exclusiveness, only authentic Champagne could describe itself as Champagne. Other drinks manufacturers have found it necessary to protect their brand’s identities by invoking the passingoff law. Sherry and Port are names that are restricted to fortified wines that emanate from Jerez in Spain, and the Douro Valley in Portugal, respectively. Warninks Advocaat is a traditional egg and brandy liqueur made in Holland since 1616, which Keeling’s Old English Advocaat failed to usurp in 1979. In 2010, Diageo Smirnoff Vodka prevented Intercontinental Brands from selling a cheaper vodkacontaining drink named Vodkat, primarily because it did not contain the necessary 37.5% alcohol to be classed as vodka.
A passingoff claim is likely to succeed in circumstances where the consumer might be deceived into purchasing a product that is similar to that of a claimant who has a strong brand identity and a reputation to protect, that is to say, there is a risk of damage to the claimant’s ‘goodwill’. A passingoff claim is less likely to succeed when the defendant is innocently using his or her own name, or the claimant’s product and labelling are not distinct enough to distinguish it as only belonging to them. Norman McDonald ran a small restaurant named McDonald’s Hamburgers Country drivein. He fell foul of the McDonald’s restaurant chain by including two lit golden arches in his sign. He was forced to remove the arches and add Norman in front of McDonald’s on the sign, so as not to misrepresent the business as a McDonald’s franchise.
McDonald’s has taken legal action against several businesses that refused to drop Mc from their trading name, including those with very similar names, such as MacDonald’s and Mcdonald. McDonald’s have not always won their legal cases. However, they were more likely to succeed if the defendants had a clear association with a food service that could be confused with McDonald’s. So a fastfood outlet in the Philippines named MacJoy was forced to change its name and became MyJoy; Elizabeth McCaughey had to alter the name of her coffee shop from McCoffee, which was a play on her name; and a Scottish sandwichshop owner was restrained from using the name McMunchies; but McChina Wok Away was permitted because it was ruled that McChina would not cause any confusion amongst customers. It was also indicated that McDonald’s did not have exclusive rights to the prefix Mc. This was confirmed when McDonalds lost its case against McCurry despite an earlier ruling that the prefix Mc, combined with colours distinctive of the McDonald’s brand, might confuse and deceive customers. The business had claimed that McCurry stood for Malaysian Chicken Curry.