The Scottish Whisky Association (SWA) was set up to protect the global reputation of the Scottish Whisky industry, which is worth almost £4 billion a year in exports and supports more than 20,000 jobs in Scotland.
Now, after its recent trademark success in China, it’s suffered a legal setback at the hands of the EU’s Advocate General, who has allowed a distiller in Germany to continue to brand its whisky ‘Glen Buchenbach’.
A German distiller in the Buchenbach valley, Southwest Germany, has included the word ‘Glen’ – a Gaelic word meaning small valley – on its label. The SWA argued that ‘Glen’ suggests it is made in, or connected to, Scotland and could confuse consumers. Indeed, 31 of the 116 Scottish distilleries benefiting from EU protection are named after the Glen they are located in. Protected name status covers geographical indication, when certain products are characteristic of a particular region, like Champagne, Parma Ham, Halen Môn Anglesey Sea Salt, and, of course, Scottish Whisky. This protection prevents other producers from selling versions of the product that have no link to the true place of origin.
German judges referred the case to the European Court of Justice (which clarifies points of EU Law) regarding the type of connection that there must be between a product and a word (or other factor) for there to be an infringement of EU protected status.
Although the Court of Justice won’t deliver their judgment until later this year, the Advocate General has issued a preliminary opinion that, although the word Glen was Gaelic in origin, if the average European consumer is confronted with the term ‘Glen’, the image triggered in his mind is not necessarily that of ‘Scotch Whisky’. Therefore, the use of the word does not evoke Scotland to the point that EU law would be broken. He also pointed to examples where Irish and Canadian whiskies had also used the term on their labels.
In 2009, the SWA took a distiller to the Canadian Federal Court of Appeal over the name ‘Glen Breton’ – but was ultimately unsuccessful, and the product remains on the market.
The global whisky market is also on the rise, and there have been distillers as far away as China and Japan that have featured labels with pictures of Highland mountains and glens, in a reference to Scottish heritage. Following the opinion of the Advocate General, a SWA spokesperson said,“the reputation of geographical indications is crucial, and the law is there to prevent unfair advantage being taken of that reputation”.
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