EU Court Prioritizes Consumer Input in Scotch Whiskey Suit

(CN) – What consumers think of the Gaelic word glen is critical to a geographic-indication suit that the trade group for Scotch whiskey brought against a competitor in Germany, the EU’s highest court ruled Thursday.

Gaelic for narrow valley, the word glen appears in the names of 31 of the 116 makers producing Scotch whiskey. Drawing the ire of the Scotch Whisky Association, however, it also appears in the name of a German spirit that Michael Klotz makes in the Buchenbach valley of Swabia, Germany.

Claiming that Glen Buchenbach infringes its protected geographical indication for Scotch whiskey, the association filed suit. The European Court of Justice intervened in the case meanwhile at the invitation of the Hamburg Regional Court.

Based in Luxembourg, it ruled Thursday that it is not enough that the word glen might evoke some kind of association with Scotch whiskey.

“In assessing whether there is an ‘evocation’ within the meaning of that provision, it is therefore for the national court to determine whether, when the consumer is confronted with the name of the product, the image triggered in his mind is that of the product whose geographical indication is protected,” the ruling from the Fifth Chamber states.

On remand, the ruling continues, the Hamburg court must “determine whether an average European consumer who is reasonably well informed and reasonably observant and circumspect thinks directly of the protected geographical indication, namely ‘Scotch Whisky’, when he is confronted with a comparable product bearing the disputed designation, in this case ‘Glen.’”

The EU judges disputed, however, a push from the Hamburg court that the case should turn on “the criterion of ‘conceptual proximity’ between terms emanating from different languages.”

Though the Hamburg court said such proximity may evoke a product with a protected geographical indication, Thursday’s ruling says the criterion “does not establish a sufficiently clear and direct link between that element and the indication concerned.”

Whereas the EU legislature has set out clearly defined criteria to “ensure a more systematic approach in the legislation governing spirit drinks,” the ruling says the use of “a criterion as vague and far-reaching as that put forward by the referring court … would not be consistent with that objective.”

“The use of such a criterion would extend the scope of Regulation No 110/2008 in an unforeseeable way and would give rise to significant risks, particularly for the legal certainty of the economic actors concerned,” the ruling also states.

Before issuing its ruling, the EU court took into consideration a recommendation offered in February by Advocate General Henrik Saugmandsgaard Øe.

Akin to a magistrate, Øe had noted that “there are also whiskies produced outside of Scotland which have ‘glen’ as part of their name, such as the whiskies ‘Glen Breton,’ ‘Glendalough’ and ‘Glen Els,’ which come from Canada, Ireland and Germany respectively.”

Glen Buchenbach is produced at the Waldhorn distillery, which was represented in the case by Sven Muhlberger with MS Concept. The Waiblinger law firm has not responded to an email seeking comment.

“The choice to use ‘Glen’ as a part of a brand name of a German whisky, when it is clearly evocative of Scotland and Scotch whisky, has to be challenged,” a spokeswoman for the Scotch Whisky Association said in a statement. “Following the ruling by the CJEU on a matter of EU law, the case will now be sent back to the German court for further consideration.”

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