SWA v Michael Klotz was finally held in the Court of Justice of the European Union and it was decided to send the case back to the Landgericht Hamburg Regional Court. This was for them to decide if a Âreasonably well informed and reasonably observant and circumspect consumerÂ would associate scotch whisky with a German based Glen BuchenbachÂ
Scotch whisky has a geographical indication that protects its brand across the EU from other brands from selling versions of its whisky which have no direct link to Scotland as a place of origin. When the German based company started making their whisky and called it Glen Buchenback, the Scotch Whisky Association (also known as SWA) filed a law suit. This went up to the CJEU and they held that it was for the national court to determine whether a consumer would actually directly link scotch whisky with this comparable product due to the word ÂGlenÂ, which is actually produced in a distillery in Bergien, in the Buchenbach valley in Swabia, Germany.
Interestingly, the word Glen is the only comparable descriptive on the bottles, and everything else is German including the detail of address, but the SWA still proclaim that this word is enough to confuse a consumer into thinking its origin is Scotland. To rebut this statement, Klotz, who produces the spirits, said that the name is a play on word from Bergien, and the river Buchenbach and that Glen actually is an irish word that means narrow valley.
Infringement is the essence of this law suit, so it must be clear what the connection is and how strong the argument is. It appeared through the court, that not all distilleries producing whisky as being scotch whisky are actually produced in a region of Scotland which use the word glen in it.
Some of the key points raised by the Attorney General, are that Âthis is the first time the court has been invited to specify to what extent a designation without any similarity, either phonetic or visual, with a protected geographical indication, may nevertheless infringe that indication. Also, Âit is not sufficient that the designation is liable to evoke in the relevant public some kind of association of ideas with the protected indication or the relevant geographical area.Â
Lastly, he concluded that Âis a matter for the national court to determine, taking into account, as the case may be, the partial incorporation of a protected GI in the disputed designation, any phonetic and/or visual similarity between that designation and that indication, or any conceptual proximity between the designation and the indication.Â
It will be interesting to see what the regional court determines.