The Scotch Whisky Association is a Scottish organisation protecting the trade in Scottish whisky both in Scotland and abroad. Taking the view that the marketing of a whisky under the designation \u2018Glen Buchenbach\u2019 (which is produced by the Waldhorn distillery in Berglen, located in the Buchenbach valley in Swabia, Germany) was infringing the geographical indication \u2018Scotch Whisky\u2019, it brought an action before the Landgericht Hamburg (Regional Court in Hamburg, Germany), which referred to the Court of Justice of the European Union for an interpretation of Article 16(a) to (c) of Regulation (EC) No 110\/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks.<\/p>\n
According to said article, \u201cthe geographical indications registered in Annex III shall be protected against:<\/em><\/p>\n The questions referred to the Court for a preliminary ruling were designed to determine if a designation such as \u2018Glen Buchenbach\u2019, that does not include any element appearing close to the geographical indication \u2018Scotch Whisky\u2019, could be prohibited on the grounds of said geographical indication. In other words, may the designation \u2018Glen Buchenbach\u2019 be considered a direct or indirect commercial use of the GI \u2018Scotch Whisky\u2019, or an evocation of the GI \u2018Scotch Whisky\u2019, or a false or misleading indication in connection with the GI \u2018Scotch Whisky\u2019?<\/p>\n The decision of the Court of Justice in the Case C\u201144\/17, Scotch Whisky Association v Michael Klotz, was issued June 7th<\/sup>, 2018.<\/p>\n Reasonably, the Court held that for the purpose of establishing that there is \u2018indirect commercial use\u2019 of a registered geographical indication, the disputed element must be used in a form that is either identical to that indication or phonetically and\/or visually similar to it, and that accordingly, it is not sufficient that that element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto. It means that the designation \u2018Glen Buchenbach\u2019 cannot be considered as an indirect (or direct for that matter) commercial use of the GI \u2018Scotch Whisky\u2019.<\/p>\n But may the designation \u2018Glen Buchenbach\u2019 be considered an evocation of the GI \u2018Scotch Whisky\u2019? It is not part of the Court\u2019s prerogatives to give a straight positive or negative answer to that question. However, the Court explains how Article 16(b) of the Regulation must be interpreted by national courts. In order that there is an \u2018evocation\u2019 of a registered geographical indication, it is required to assess whether, when the average European consumer who is reasonably well informed and reasonably observant and circumspect is confronted with the disputed designation, the image triggered directly in his mind is that of the product whose geographical indication is protected. Since there is no visual or phonetic similarity between the disputed designation \u2018Glen Buchenbach\u2019 and the GI \u2018Scotch Whisky\u2019, account must be taken of the conceptual proximity, if any, between both.<\/p>\n For the Scotch Whisky Association, such conceptual proximity could result from the use of the word \u2018Glen\u2019, Scottish Gaelic for valley. On the other side, Mr. Klotz who markets the whisky under the designation \u2018Glen Buchenbach\u2019, considers that the other elements on the labels of the bottles are enough to establish the German origin of the whisky and avoid any confusion on the part of the consumer (\u201cthe label on the whisky bottles in question includes, in addition to a stylised depiction of a hunting horn (Waldhorn in German), the following information: \u2018Waldhornbrennerei\u2019 (Waldhorn distillery), \u2018Glen Buchenbach\u2019, \u2018Swabian Single Malt Whisky\u2019, \u2018500 ml\u2019, \u201840% vol\u2019, \u2018Deutsches Erzeugnis\u2019 (German product), \u2018Hergestellt in den Berglen\u2019 (produced in the Berglen)<\/em>\u201d).<\/p>\n Such context is not significant for the Court, according to which, whether for the purpose of establishing that there is an \u2018evocation\u2019 of a registered geographical indication, or for the purpose of establishing that there is a \u2018false or misleading indication\u2019, account must not be taken of the context surrounding the disputed element or, in particular, of the fact that that element is accompanied by an indication of the true origin of the product concerned.<\/p>\n The Regional Court of Hamburg now has all arguments to rule on the case, or so it seems\u2026 But what about you? Does the designation \u2018Glen Buchenbach\u2019 make you think of Scotch Whisky?<\/p>\n \u00a9 [INSCRIPTA]<\/p>\n","protected":false},"excerpt":{"rendered":" The Scotch Whisky Association is a Scottish organisation protecting the trade in Scottish whisky both in Scotland and abroad. Taking the view that the marketing of a whisky under the designation \u2018Glen Buchenbach\u2019 (which is produced by the Waldhorn distillery in Berglen, located in the Buchenbach valley in Swabia, Germany) was infringing the geographical indication […]<\/p>\n","protected":false},"author":4,"featured_media":5611,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[831,830],"tags":[968,922,1223],"class_list":["post-2617","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all","category-trademarks","tag-geographical-indications","tag-protected-geographical-indication","tag-scotch-whisky-en"],"yoast_head":"\n\n