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The 2017 moot concerns the case Whispering Gums Winery v Loddon River Vineyards  HCE 12. A copy of this case is included below, along with relevant provisions of the Patents Act 1980.
At first instance in the High Court of Erewhon, Madam Justice Davies found in favour of the defendant. She held that:
i. Although the defendant had sold bottles within the scope of the claims in the claimant’s patent (the “789 Patent”), the 789 Patent was invalid for being contrary to public policy or morality under section 10(3) of the Patents Act 1980.
ii. The claimant was unable to sustain an action in extended passing off. The word “Erewine” lacked goodwill or, if there was goodwill, the claimant was not a member of the class that shared the goodwill. This made it unnecessary to consider misrepresentation and damage.
The claimant was granted leave to appeal from this judgment. The defendant lodged a cross-appeal in relation to the conclusions on claim construction. By order, without issuing an opinion, a unanimous bench of the Court of Appeal upheld the decision of the High Court. The claimant has been granted leave to bring a further appeal to the Supreme Court of Erewhon, and the defendant a further cross-appeal. The appeal before the Supreme Court will therefore cover:
- In relation to the 789 Patent, whether the 789 Patent should be invalidated for being contrary to morality and (on the assumption the 789 Patent is valid) whether the sale of the bottles by the defendant falls within the claims of the 789 Patent.
- In relation to extended passing off, whether the elements of extended passing off have been made out.
It is your task to prepare written and (for teams that are invited to the Oral Proceedings) oral submissions for this appeal. Some points to consider:
a. Each written submission must cover all issues on appeal, i.e., make submissions on both the appeal and cross-appeal.
b. Whilst you are encouraged, within the grounds of appeal, to present arguments and authorities not mentioned by Madam Justice Davies, you should not seek to introduce entirely new causes of action, or to press arguments that have been conceded or were never ventilated in the original proceedings. For instance, it is not permissible to argue that the 789 Patent is invalid due to lack of novelty or inventive step.
c. The expert testimony of Professor R. Douglas in  has been accepted by Madam Justice Davies and may not be challenged as a matter of fact (although it is permissible to challenge the conclusions of law that are based on those facts). Madam Justice Davies has cited definitions from the Oxford English Dictionary in relation to the meaning of “sparkling wine”. It is permissible to refer to these and other dictionary definitions as part of the submissions on claim construction. For teams in the oral rounds, please include any dictionary entries on which you intend to rely in your bundles.
d. The opinion of Madam Justice Davies includes reference to a number of cases. For the purposes of the written submissions, it is expected that you will deal with all of these items, and you risk missing out on credit if you omit analysis of them. However, these references are not intended to constitute your sole authorities for the moot, and indeed you are expected to rely on other primary and secondary materials. The emphasis you give to any particular authority (including those cited by Madam Justice Davies) is up to you, although the Panel will not look favourably upon strong reliance on an unduly narrow spectrum of authorities.
e. Although the moot is held in Europe, this is an international competition and you are not limited in the jurisdictions from which you use authority. You may therefore use authorities from around the world. Obviously, however, it needs to be clear why any given authority is relevant to the legal issues in dispute.
f. Erewhon is not a member of the European Union or the European Patent Convention. It is a signatory to the Paris Convention and the TRIPS Agreement.
g. Requirements for your written submissions are contained in §14 of the Rules. The following is some additional guidance:
i. You do not need to include such things as a table of contents, statement of jurisdiction, statement of facts, index of authorities, etc. Submissions should focus on the substantive matters raised in the appeal.
ii. When marking your submissions, the Panel will be instructed not to give extra credit for court headings and other flourishes that merely give the submissions the superficial “look” of an official court document. Credit may be awarded for a presentation style that facilitates the arguments being made (for instance, in the content and number of headings, the use of a logical paragraph numbering system, and so forth). You should not, therefore, be worried about purely stylistic matters when constructing your submissions.
iii. The word count includes all the text in the footnotes. It is recommended that footnotes are used primarily for citation purposes, and that you minimise the amount of substantive text that appears in the footnotes.
iv. There is no prescribed style guide for the submissions. Teams should, however: (i) maintain consistency of style throughout each submission; (ii) include full citations for sources on which they rely (at least the first time any given source is cited); and (iii) ensure that whenever they quote from a source, a pinpoint reference is included to the relevant page number and/or paragraph.
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Your submissions must be received by the Moot Secretary (at the email address above) by 3:00pm on Monday 12 December 2016, Oxford time; see further §15-§16 of the Rules. As noted there, within their written submissions, teams must identify themselves only by use of the anonymous identifier given to them in advance by the Moot Secretary. To apply for this identifier, you should email the Moot Secretary at [firstname.lastname@example.org] well before the submission deadline.
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IN THE HIGH COURT OF EREWHON  HCE 12
THE HONOURABLE MADAM JUSTICE DAVIES
Whispering Gums Winery
- and –
Loddon River Vineyards
Madam Justice Davies:
 The parties to this case are two Erewhonian wineries: Whispering Gums Winery (the claimant) and Loddon River Vineyards (the defendant). The case revolves around a sparkling white wine produced by the claimant and marketed under the name “Wizard’s Wizz Erewine”. As will be explained in further detail below, the name “Erewine” is used by numerous Erewhonian wine producers to refer to a double-fermented sparkling white wine made in Erewhon using locally-grown grapes. (For clarity, there is no registration system in Erewhon for the protection of geographical indications of origin or appellations of origin.) The claimant’s product has a strength of 12 per cent alcohol per volume, and sells for ERD$6.00 per 750mL bottle (approximately GBP£5.00). The claimant holds a patent in relation to the bottle. The invention disclosed by the patent is internal dimples that enhance the effervescence of the contents of the bottle.
 Loddon River Vineyards produces wines, ciders and non-alcoholic beverages. In November 2015 it launched two new products: a cider of 2.5 per cent alcohol per volume marketed as “Loddon River Sweet Apple Cider” (“Apple Cider”) and a fizzy non-alcoholic drink marketed as “Loddon River Elderflower Non-Alcoholic Erewine” (“Elderflower Erewine”). Both products are sold in bottles identical to those used by the claimant. Unlike the claimant’s product, they are sealed with a plastic stopper rather than a cork.
 The proceedings before me involve two complaints: first, that the sale by the defendant of its Apple Cider and Elderflower Erewine in a bottle identical to the one used by the claimant constitutes an infringement of the claimant’s patent; and secondly, that the use of the word “Erewine” to describe a non-alcoholic Elderflower drink constitutes passing off in its extended form. The claimant seeks declaratory and injunctive relief against the defendant, as well as damages or an account of profits. On the application of the defendant, I ordered that the trial be split in two so that I would hear and decide upon the merits of the case prior to hearing the parties on remedies. As I have decided both claims in favour of the defendant, it will not be necessary for me to consider remedies.
 The claimant is the registered holder of Erewhonian Patent No 3,456,789, titled “Bubble-Enhancing Bottle” (“789 Patent”). The description of the invention reads, in part:
Beverages such as sparkling wine contain carbon dioxide in order to make them effervescent upon opening and pouring. The presence of effervescence has a number of positive effects for the consumer, including enhanced delivery of aroma and flavour, and providing the drink with a vibrant mouth-feel. The present invention relates to a bottle shape that increases the number of bubbles produced once a bottle has been opened and slows the rate at which the contents of an opened bottle go flat. …
 From the outside, the bottle described in the patent (“789 Bottle”) resembles an ordinary bottle. It has an elongated neck, sloping shoulder and a punt (divot) at the bottom. Its height is 30cm, the circumference of the body is 28cm, and the circumference of the narrowest part of the neck is 9.5cm. However, instead of the surface on the interior being flat (giving the glass a consistent thickness), there are 1cm wide dimples across the interior body of the bottle. It is these dimples that enhance the effervescence of the contents. Currently, only “Wizard’s Wizz Erewine” is sold by the claimant in its 789 Bottle.
 The defendant accepts that if the 789 Patent is valid and its use falls within the scope of the claims, it will have infringed the patent under s. 100(1)(a) of the Patents Act 1980. It also accepts that it has sold glass bottles with identical dimensions and dimpling to that described in the 789 Patent. However, it says that its use is outside the claimed invention because the claims of the 789 patent refer to “sparkling wines”, and its Apple Cider and Elderflower Non-Alcoholic Erewine are not “sparkling wines”. Claim 1 (which is representative of all the claims) claims:
A glass bottle for enhancing the effervescence of sparkling wines, being a bottle [the claim goes on to describe the interior dimpling].
 With no guidance in the Patents Act 1980, and no definitive judgment from the Supreme Court of Erewhon, the defendant submits that I should take an approach to claim construction in which the language of the claims demarcates the boundary of the invention (i.e., the claims serve as “fenceposts”). It also says that in this case, the ordinary meaning of “sparkling wine” can be taken to be determinative. In support of this it cites the US case Phillips v AWH Corporation, 415 F.3d 1303 (Fed Cir 2005) where it was stated at p. 1314 that:
In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words … In such circumstances, general purpose dictionaries may be helpful.
 Applying this approach, the defendant says that “sparkling wine” refers to a fizzy, alcoholic beverage made from fermented grapes, and that neither of its products is “sparkling wine” because: (1) the cider, although fizzy and containing alcohol, is made using fermented apple juice; and (2) the elderflower product is a non-alcoholic drink made from elderflowers. The defendant says that this approach is consistent with the legal regulation of alcoholic beverages in Erewhon; for instance, the Alcoholic Liquor Duties Act 2003 contains different rates for “cider” and “wine”, which are defined in section 1 as:
Cider” means any liquor of a strength exceeding 1.2 per cent but less than 8.5 per cent obtained from the fermentation of apple juice without the addition at any time of any alcoholic liquor.
Wine” means any liquor which is of a strength exceeding 1.2 per cent, and which is obtained from the alcoholic fermentation of fresh grapes or of the must of fresh grapes, whether or not the liquor is fortified with spirits or flavoured with aromatic extracts.
 The defendant advanced a series of arguments in support of its preferred approach to claim construction, for instance in relation to legal certainty and the need to prevent over-claiming. However, after much consideration, I am more convinced by the arguments of the claimant, who submitted that a text-focused approach to claim construction (even if dressed up as “purposive” construction) overestimates the capacity of drafters to capture, with precision, the scope of the invention. By focusing excessively on language as providing limits to the invention, lawyers and judges can get stuck in a semantic exercise that loses sight of the goals and gist of the invention. The claimant therefore says it is preferable for the claims to serve as a “signpost” for the scope of the invention.
 There are a number of ways in which we can retreat from a literal approach to claim construction. In my opinion the most intellectually honest, and hence preferable, route is through the doctrine of equivalents. I prefer this approach because it emphasizes that my duty is to determine the fair and reasonable scope of the patent, based on the inventive concept disclosed in the claims. Applying this approach to the present case, I am of the view that the invention enhances the production of bubbles in pressurized bottled drinks containing dissolved carbon dioxide that comes out of solution upon opening. It is irrelevant whether the relevant drink contains alcohol or whether it has been produced from grapes, apples, elderflowers or some other source. Thus even if “sparkling wine” has the usual meaning advanced by the defendants, I am of the view that the 789 Patent must be read to include the use of the 789 Bottle for Apple Cider and Elderflower Erewine.
 I should add that even if this approach is incorrect and I adopted a text-focused construction, I am still of the view that the person skilled in the art (being a person with some knowledge of the chemistry and making of sparkling beverages) would interpret “sparkling wine” as including the defendant’s Elderflower Erewine and, possibly, Apple Cider. This is supported by a broader definition of the word “wine” as referring to fermented liquors from other fruits, grains and flowers; and the fact that drinks whose appearance and flavours are reminiscent of alcoholic beverages are often presented as a non-alcoholic version, e.g., “non-alcoholic wine” or a “non-alcoholic cocktail”.
 However, there is a more fundamental problem for the claimant which renders the above analysis obsolete. Whilst the defendant did not seek to challenge the validity of the patent on the grounds of novelty or inventive step, it argued that the 789 Patent falls within the exclusion in section 10(3) of the Patents Act 1980 for inventions the commercial exploitation of which would be contrary to public policy or morality, and that the patent should therefore be invalidated. The essence of the defendant’s case is that the 789 Bottle is designed to (if I may put it bluntly) get consumers drunk faster, and that this is dangerous to public health and safety. In presenting this aspect of its case, the defendant relied on the expert testimony – which I accept – of Professor R. Douglas of the Department of Physiology, University of Erewhon, in relation to the relationship between effervescence and blood alcohol levels. In addition to summarizing the results of international research demonstrating that fizzy drinks lead to higher blood alcohol readings than flat drinks, Professor Douglas conducted his own studies on the effect of the 789 Bottle. For instance, in one experiment subjects drank either: (1) “Wizard’s Wizz Erewine” poured straight out of the 789 Bottle; (2) another brand of Erewine of alcohol content 12 per cent poured straight out of a normal bottle; or (3) “Wizard’s Wizz Erewine” that had been poured and allowed to stand, and was no longer effervescent. The wines were served at the same temperature, and subjects all drank the same amount of alcohol per kilogram of body weight. The blood alcohol levels rose fastest in Group 1 and at their highest were 1.5 times the peak levels of Group 2, and 3 times the peak levels of Group 3. Even after an hour, the blood alcohol levels of Group 1 subjects were higher than the other two groups.
 Secondly, the defendant relied on the newspaper reports, marketing materials and sales figures which show that “Wizard’s Wizz Erewine” is geared towards, and consumed primarily by, university students and youth in the 18-25 age bracket, and furthermore is the drink of choice for those looking to get intoxicated as quickly and cheaply as possible. It noted the ongoing campaign by The Daily Hyphen, one of Erewhon’s leading newspapers, regarding the hospital admissions and arrests that are said to come from over-consumption of the claimant’s beverage; and government attempts, under its “Think Before you Drink” campaign, to encourage the responsible consumption of alcohol. Lest the claimant attempt to resist these arguments, its tongue-in-cheek naming of the product (which invokes its magical properties) and recent marketing activity on social media using the hashtags “#preload” and “#underthetable” put an end to any credible argument that “Wizard’s Wizz Erewine” is intended to be used responsibly. Indeed, until this case I was not even aware of the meaning of the term “preload” and had to ask my clerk for help. She pointed me in the direction of an online resource called The Urban Dictionary, which has proven to be of invaluable assistance.
 There is no case law in Erewhon to consider the scope of section 10(3), and I am aware that much of the case law considering equivalent provisions in other jurisdictions has focused on biotechnological inventions. However, I can glean from decisions such as Harvard/OncoMouse, T 19/90  OJ EPO 490 (TBA) the need to undertake a utilitarian balancing exercise that weighs up relevant considerations, in that case the possible benefits to humankind through cancer research as against the potential suffering of the animals and environmental risks. Applying that balancing exercise to this case, I see numerous downsides to this invention (especially through heightening the level and speed of intoxication amongst young people) and no upsides. As such, I am of the view that the 789 Patent discloses an invention that is excluded by section 10(3), meaning that the claimant’s patent is invalid and its claims for infringement must fail. There is obviously some irony in the defendant pointing to morality to deny the patentability of an invention it uses itself, its explanation being that its products are of no or very low alcohol content. Whether the 789 Bottle should be banned or the subject of further regulation is beyond the scope of this case, however, it is clear that it should not enjoy the benefits of patent protection.
Extended passing off
 The other allegation made by the claimant is that the defendant’s description of its elderflower product as “Erewine” constitutes passing off in its extended form, that is, passing off based on shared goodwill. The limbs of extended passing off reflect those of the usual form (i.e., there must be goodwill, misrepresentation and damage), albeit with some modification to reflect group ownership. The claimant’s position is that “Erewine” has become distinctive of a double fermented, sparkling white wine made in Erewhon from locally-grown grapes (being a single variety or a combination), and of alcohol content between 5 to 14 per cent. It argues that using the term “Erewine” in relation to a non-alcoholic, elderflower beverage constitutes a misrepresentation, and that I should award a permanent injunction prohibiting the defendant from calling its drink “Erewine”. For clarity, these arguments pertain only to the use of the word “Erewine” – there is no argument for passing off based on the get-up of the claimant’s product, which is very different from that of the claimant and represents the defendant’s long-standing house style.
 The claimant introduced much evidence in support of its assertion of shared goodwill, including labeling conventions amongst Erewhonian wine producers, marketing and sales data, and oral testimony from employees, trade representatives and members of the public. However, there is a fatal flaw in the claimant’s position: the boundaries of the product in respect of which shared goodwill is said to exist are too unclear. Thus, the claimant’s own case is that the alcohol content of Erewine can vary from 5 to 14 per cent; that Erewine can be produced from any type of grape; that there is no unified approach to the production method beyond the need for double fermentation; and that Erewine can be made from a producer anywhere in Erewhon. The shared characteristics exist at an extremely high level of generality, and I am cautious of the repeated reference by Lord Diplock in Erven Warnink BV v J Townsend & Sons (Hull) Ltd  AC 731 (HL) regarding the need for recognisable and distinctive qualities in the product, e.g.:
… The larger [the class of traders] the broader must be the range and quality of products to which the descriptive term used by the members of the class has been applied, and the more difficult it must be to show that the term has acquired a public reputation and goodwill as denoting a product endowed with recognisable qualities which distinguish it from others of inferior reputation that compete with it in the same market. … (at p. 744, my emphasis)
Of course it is necessary to be able to identify with reasonable precision the members of the class of traders of whose products a particular word or name has become so distinctive as to make their right to use it truthfully as descriptive of their product a valuable part of the goodwill of each of them; but it is the reputation that that type of product itself has gained in the market by reason of its recognisable and distinctive qualities that has generated the relevant goodwill. … (at p. 747, my emphasis)
Similarly, Lord Fraser in the same case spoke, at p. 755, of the class of goods being “clearly defined”.
 The claimant referred me to a number of cases from the Court of Appeal of England and Wales. For instance it cited Chocosuisse Union des Fabricants de Chocolat v Cadbury Ltd  RPC 826, where there was shared goodwill amongst Swiss chocolate manufactures in the term “Swiss chocolate”, this term referring to chocolate made in Switzerland. The claimant also relied on Fage UK Ltd v Chobani UK Ltd  EWCA Civ 5,  FSR 29, where it was held that a substantial proportion of buyers of “Greek yoghurt” believed that it came from Greece and that it was special, having a distinctive thick and creamy texture. I am of the view that these cases have not taken seriously the need for a clearly defined product class, and that they should not be followed in Erewhon. Open-ended product categories that do not enjoy a fixed and stable meaning cannot enjoy goodwill for the purposes of extended passing off. Given that “Erewine” is hopelessly open-ended, it cannot be the repository of goodwill.
 If any of this is incorrect, there are further reasons why I would decline to give the plaintiff a remedy. If there is any shared goodwill in the word “Erewine” it comes from the cachet conferred by high-end producers selling a premium product at a higher price point. The claimant produces the cheapest product sold as Erewine, with a retail price of ERD$6.00 per 750mL bottle. In contrast, prices for premium wines using the “Erewine” denomination typically start at around ERD$50.00, with the most expensive bottles retailing for hundreds and even thousands of dollars. It is clear that in order to bring an action in extended passing off the claimant must be a member of the class of traders that generate or retain the goodwill, however, in this case the claimant undermines the efforts of the premium sellers rather than reinforces them. The defendant tendered as evidence a series of newspaper articles and reviews of the claimant’s product, and the authors of this country’s leading wine guide – The Erewhonian Good Wine Guide (12th edition, 2015) – were absolutely typical by giving this product 0.5 stars out of five and describing its positive features as “contains alcohol” and “cold when chilled”. In this regard I note that during the course of this litigation, I was given the dubious pleasure of sampling the claimant’s product. This has confirmed to me that anyone who is in a position to purchase a more expensive product would avail themselves of the opportunity.
 The claimant points to its high sales figures to help establish its membership of the class. However, I am not prepared to accept that the level of popularity of this product should be equated with goodwill. As noted above, the reputation enjoyed by the claimant’s product is not of the right type to generate goodwill for the purposes of extended passing off. The evidence discloses that the claimant’s product is consumed primarily by university students and other revelers aged 18-25 who are looking to get intoxicated as quickly and cheaply as possible. This is the complete opposite of the (supposedly) special products in cases such as Chocosuisse and Fage v Chobani.
 Furthermore, I am unconvinced that anyone purchasing the claimant’s product is at all concerned about its production in Erewhon or other features said to place Erewine in a distinctive class. An analogy can be drawn with the Australian case Hills Industries Limited v Bitek Pty Ltd  FCA 94, (2011) 214 FCR 396, where certain claims required the registered trade mark owner to establish a “reputation” in its mark. Lander J held that, whilst proof of sales and advertising can be used to demonstrate reputation, “that evidence cannot be determinative”: . In that case Hills’s mark had been used in relation to television set-top boxes that converted a digital signal into a form that could be displayed on an analogue television. With Australia converting its terrestrial television network from analogue to digital, the high sales figures enjoyed by Hills were better explained by it being one of the few suppliers of equipment that would allow consumers to upgrade their analogue televisions than its mark enjoying a reputation. Similarly, I am of the view that the high sales figure of the claimant are a function of the price point and alcoholic strength of its product, and have nothing whatsoever to do with the word Erewine.
 Given the reasons above are sufficient for me to dismiss the claimant’s action in extended passing off, it is unnecessary for me to consider the parties’ detailed submissions in relation to misrepresentation and damage.
Madam Justice Davies made orders dismissing the claims for patent infringement and extended passing off, and invalidated the 789 Patent. The claimants were granted leave to appeal to the Court of Appeal in relation to validity of the 789 Patent and extended passing off. The defendant filed a cross-appeal in relation to the conclusion that its products fell within the claims of the 789 Patent.
Patents Act 1980 – extracts
Section 10 Exclusions from patentability
(3) A patent shall not be granted for an invention the commercial exploitation of which would be contrary to public policy or morality.
(4) For the purposes of subsection (3), exploitation shall not be regarded as contrary to public policy or morality only because it is prohibited by any law in force in Erewhon or any part of it.
Section 100 Infringement
(1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he or she does any of the following things in Erewhon in relation to the invention without the consent of the proprietor of the patent:
(a) where the invention is a product, he or she makes, uses, offers for sale, sells, or imports the product for one of these purposes;
(b) where the invention is a process, he or she uses, offers for sale, sells, or imports for these purposes at least the product obtained directly by that process;
(c) where the invention is a process, he or she uses the process or he or she offers it for use in Erewhon when he or she knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent.
Section 102 Remedies
(1) The relief which a court may grant for infringement of a patent includes an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.
Cases cited by Madam Justice Davies
Phillips v AWH Corporation, 415 F.3d 1303 (Fed Circ 2005)
Harvard/OncoMouse, T 19/90  OJ EPO 490 (TBA)
Erven Warnink BV v J Townsend & Sons (Hull) Ltd  AC 731 (HL)
Chocosuisse Union des Fabricants de Chocolat v Cadbury Ltd  RPC 826 (CA)
Fage UK Ltd v Chobani UK Ltd  EWCA Civ 5,  FSR 29
Hills Industries Limited v Bitek Pty Ltd  FCA 94, (2011) 214 FCR 396
 The defendant cites the Oxford English Dictionary (OUP online version 2016), whose entry for “wine, n.1” has as its first definition: “1. a. The fermented juice of the grape used as a beverage.” The entry continues: “It is essentially a dilute solution of alcohol, on the proportion of which in its composition depend its stimulating and intoxicating properties. Wines are classed as red or white, dry or sweet, still or sparkling.” There is no separate entry for “sparkling wine”, although the entry for “sparkle, v.1” includes “4. Of wines, etc.: To effervesce with small glittering bubbles, due to the presence or rising of carbonic-acid gas.”
 See OED, definition of “wine, n.1”: “2. In wider use, usually with qualifying word: A fermented liquor made from the juice of other fruits, or from grain, flowers, the sap of various trees (e.g. birch and palm), etc.: sometimes called made wine …”. The Alcoholic Liquor Duties Act 2003 includes a separate definition of “made-wine”, being “any liquor which is of a strength exceeding 1.2 per cent and which is obtained from the alcoholic fermentation of any substance or by mixing a liquor so obtained with any other liquor or substance, but does not include wine, beer, spirits or cider”. The duty rates for wine and made-wine are identical.