GERMAN whisky brand Glen Buchenbach may be infringing Scotland's rights on its national drink, the EU's top court has said.
The statement came after the Scotch Whisky Association launched a legal challenge against Waldhorn Distillery’s use of the word 'glen' in the name of its signature single malt.
The Scotch Whisky Association (SWA) works to prevent unfair competition and protect the global reputation of the industry, which is worth almost £4bn in annual exports and supports upwards of 20,000 jobs.
The SWA launched a challenge based on a claim that the word 'glen' suggests the whisky comes from Scotland, which it says is an infringement of Scotch Whisky’s protected status under EU law.
It claimed it misled users into thinking it was scotch.
The distiller Michael Klotz clearly stated at that the use of the word 'glen" is a play on words referring to Berglen, the place of origin of the drink and the name of a local river Buchenbach. The Swabian Single Malt Whisky is produced in Stuttgart, Germany.
But the court has held that that is not relevant in relation to the laws surrounding protected products.
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The European Court of Justice took no final view on the case on Thursday.
It referred the SWA complaint back to German judges to make a ruling.
It offered guidance to assess whether the German distiller's similar branding overstepped EU law on protected regional labels in answering the Hamburg court's query.
The German court must decide whether the "average European consumer" would confuse the German whisky with scotch, the EU Court of Justice said.
It was not enough for the word "glen" to evoke some kind of association with Scotland - it must actually bring to mind scotch whisky - the court stressed. But it did not matter, the court added, that the label said the product was made in Germany.
An SWA spokesman said: “There are many Scotch Whisky distilleries and many Scotch Whisky brands which include the noun 'Glen' as part of their name. As a result, 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."
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In February Advocate General Henrik Saugmandsgaard Øe, a senior lawyer, issued a preliminary opinion on the case before a final judgment saying 'glen' did not evoke Scotland to the extent EU law had been broken, pointing to Irish and Canadian whiskies that also used it on their labels.
The Waldhorn website says: “Glen comes from the Gaelic language and means valley.” Therefore, the English translation of Glen Buchenbach is Valley Buchenbach.
"The European Court said in an explanation of its position: "In its judgment today, the court finds first, that the wording, context and purpose of the regulation shows that 'indirect industrial use' of a registered geographical indication only exists where the contested element is used in a form, which is identical or similar in sound and/or visual with this information.
"Thus, it is not sufficient for the contested element to be able to arouse any kind of association with the addressed geographical indication or geographical area with the relevant public.
"Secondly, the Court concludes that the relevant criterion for determining whether there is an 'allusion' to the protected geographical indication is whether a normally informed, reasonably attentive and reasonable European average consumer is induced by the name of the product in question.
"Reference to the product bearing the protected geographical indication should be examined by the national court, taking into account, where appropriate, the partial inclusion of a protected geographical indication in the designation at issue, a phonetic and/or or visual similarity of that designation with the protected geographical indication or a substantive proximity of the name to the indication."
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