Misleading German Glen whisky?

The "Glen Buchenbach" whisky produced in a Swabian distillery came to the attention of the Scotch Whisky Association (SWA) and at times also involved the Court of Justice of the European Union (EuGH). The latter strengthened the position of the producer of German glen whisky by holding that a mere association with the protected designation "Scotch Whisky" would not be sufficient for an infringement.

The German distillery that launched the single malt whisky with the designation "Glen Buchenbach" on the market was sued by the SWA before the Regional Court (LG) Hamburg.

The association's allegation is that the designation glen whisky would give rise to false and thus misleading ideas in consumers. Specifically, the designation "Glen" would convey the impression that the German product is associated with the registered geographical indication "Scotch Whisky".

Court of Justice of the European Union (EuGH) takes position on German glen whisky

The Regional Court (LG) Hamburg referred several questions to the Court of Justice of the European Union (EuGH) for a preliminary ruling. The latter emphasised in its judgment (Urt. v. 07.06.2018, Az. C‑44/17) that a mere association with the protected designation "Scotch Whisky" would not be sufficient for an infringement. Furthermore, in the view of the Court of Justice of the European Union (EuGH), "indirect commercial use" of a registered geographical indication would only occur if the disputed component were used in a form which was identical with or phonetically and/or visually similar to that indication. For an infringement to exist, consumers would have to actually think of "Scotch Whisky" when they see the designation "Glen Buchenbach".

It was therefore incumbent upon the Regional Court (LG) Hamburg to assess whether an average European consumer would directly infer the geographical indication "Scotch Whisky" from the suffix "Glen". Although the distillery itself points out that it is a "Swabian Single Malt Whisky" and that it is produced "in the Berglen". However, in the view of the Court of Justice of the European Union (EuGH), these details on the label should not be taken into consideration in the assessment to be made by the Regional Court (LG) Hamburg.

Conclusion

After the Court of Justice of the European Union (EuGH) was called upon for a preliminary ruling on individual questions, the further assessment of the case is now in the hands of the Regional Court (LG) Hamburg. By the designation as glen whisky, the Court of Justice of the European Union (EuGH) does not permit mere associations with the geographical indication "Scotch Whisky" to constitute an infringement.