Scotch from the Buchenbachtal?

Glenfiddich, Glenlivet, Glen Talloch and Glen Buchenbach are all names of whisky’s, however only a few of them are allowed to use the predicate ‘Scotch Whisky’. Scotch Whisky is a so called protected geographical indication (PGI). It can only be used when the whisky originates from Scotland. Glen Buchenbach, a whisky from the Buchenbachtal in Germany, therefore cannot and does not use the term Scotch Whisky. Nevertheless, the Scotch Whisky Association, an organisation that aims to protect the trade of Scottish Whisky, started legal proceedings against Michael Klotz, the seller of Glen Buchenbach. The reason for the proceedings: Klotz should not be allowed to use the word “Glen” for his German whisky. In Scotland, Glen is often used instead of the word “valley” and as an element of the trade mark of several Scottish Whisky’s. Therefore, the public would associate the word Glen with Scotland and Scotch Whisky – despite the fact that “Glen” obviously differs from “Scotch Whisky”. According to the Scotch Whisky Association, this association is not affected by the fact that the label indicates the German origin of the product several times.
 
Klotz did not agree. He did not make commercial use of Scotch Whisky or an auditory or visually comparable indication. He was also of the opinion that the term “Glen” did not evoke Scotch Whisky, moreover, he did indicate the true origin of the product. According to Klotz, the indication of the true origin of the product was also of importance in determining whether the use of “Glen” was false or misleading. The German judge struggled with the case and decided to take the matter up with the Court of Justice of the EU.
 
The Court judges that the use of Glen does not constitute use of Scotch Whisky, because Glen is different from Scotch Whisky. In addition, the Court judges that it is possible that people think of Scotch Whisky when they are confronted with the term Glen. It is up to the German judge to establish whether the average consumer immediately thinks of Scotch Whisky when seeing the term Glen. Additionally, the Court stated that the German judge does not have to consider the fact that “Glen” comes with an indication of the true origin of the product. In establishing whether use was made of a false or misleading indication, the indication of the true origin again does not have to be considered.
 
The ball is now in the court of the German judge. He will have to decide whether the average European consumer, when seeing the term Glen, will think of the PGI Scotch Whisky. The judgment of the Court can be read here.

Mathijs Peijnenburg