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Infringement of indication of geographical origin in whisky dispute

June 2019 - Intellectual Property. Legal Developments by GRP Rainer LLP.

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A distillery based in Baden-Württemberg is not allowed to feature the word “Glen” in the name of its whisky. The Landgericht (LG) Hamburg, the Regional Court of Hamburg, found this to be too reminiscent of the protected geographical indication “Scotch Whisky”.

Geographical indications of origin can be afforded similar protection to trademarks, because consumers may come to associate a certain level of quality with designations of origin. We at the commercial law firm GRP Rainer Rechtsanwälte note that “Scotch Whisky” is one such example of a designation of origin that enjoys this kind of protection. Consumers must not be misled as to the origin of a product. In a case that came before the LG Hamburg, however, the Court concluded that the distillery in question had done just that by including the term “Glen” in the name of its whisky distilled in Germany.

The dispute between a Swabian distillery, the name of whose whisky includes the term “Glen”, and the Scottish Whisky Association had already reached the ECJ last year. The Scottish Whisky Association argued that consumers associate the term “Glen” with Scotch whisky and might therefore be misled by this misconception.

The ECJ held that whether using the term “Glen” amounts to a reference to a protected geographical designation essentially comes down to whether consumers associate it specifically with “Scotch Whisky”. The ECJ went on to state that while it was for the Landgericht Hamburg to rule on this matter, the context in which the disputed element finds itself could not be taken into account, e.g. information on the label about the origin of the product.

The LG Hamburg has since ruled that when confronted with the word “Glen” the average consumer thinks of Scotch whisky, and that a reference on the label to the origin of the product does nothing to change this impression, particularly following the ECJ’s earlier ruling that this must not be considered when looking at whether consumers have been misled, since the protection afforded by the Regulation would otherwise be too easily undone.

The jury might still be out on this legal battle, as an appeal to the Oberlandesgericht (OLG) Hamburg, the Higher Regional Court of Hamburg, is still possible.

Violations of trademark or copyright law may be met with severe sanctions. Lawyers experienced in the field of IP law can advise businesses on enforcing and fending off claims.

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