Glenora Distillers International Limited, Canada’s only single malt whisky distillery, based in Glenville, Inverness County, Cape Breton, Nova Scotia, is pleased to report that its entitlement to the registration of Glen Breton as the trade-mark of its single malt whisky has been awarded by the Federal Court of Appeal in its decision filed on January 22, 2009. Glenora has been fighting for the registration of its trade-mark since the launch of its single malt whisky in the fall of year 2000. This has been a long and hotly contested proceeding involving tens of thousands of pages of documents and has included 3 full oral hearings, in Ottawa, attended by our legal counsel, David Copp, most recently at the Federal Court of Appeal in December of last year.
The findings of the Federal Court of Appeal have rejected all of the objections of the Scotch Whisky Association. The Court determined on the substantial evidence filed that the name Glen Breton does not mislead consumers to believe that Glenora’s single malt whisky is distilled and matured in Scotland.
"If Glen Breton is suggestive to our customers that our single malt whisky is distilled with the waters of a glen stream of the Highlands of Cape Breton Island; then that is indeed the case." says Bob Scott , Vice President of Glenora Distillery
"We feel this has been a victory not just for Glenora, but also for all Cape Bretoners. Creating a fine single malt whisky to compete successfully in the market and gain global reputation has been a difficult and fiscally challenging endeavour for a private entrepreneurial company but our culture and heritage are strong and we are tremendously proud of our heritage and whisky. We believe that our claim to market our skills in the world by building on our traditions is just, and this has been recognized by Canadians across our country and internationally." says President of Glenora Distillery ,Lauchie MacLean.
I believe that the SWA will now initiate legal action to prevent Lauchie MacLean from using that forename and surname, as they imply, in combination, that he is in fact a Scot and as such he might be falsely assumed to be the president of a Scottish whisky company.
The Association was interested to read the statement issued by Glenora Distillers International Limited, and published by Whisky Magazine, in which it is claimed that the Canadian Appeal Court recently found that the name Glen Breton does not mislead consumers as to the product’s origin. That statement is wrong.
It is important to understand that what the Court actually said was: “I believe it is fair to say that Glenora has marketed its product as being like a single-malt Scotch in all but name”. The Court added, “More importantly, Justice Harrington found that there was actual confusion in the marketplace, and that some consumers were not aware that Glenora’s product was not a Scotch distilled in Scotland. In reaching this conclusion, he had particular regard to evidence that Glenora’s whisky had been listed on several bar and restaurant lists under the heading “Scotch”, albeit occasionally with some sort of note attempting to clarify that it was Canadian. There was also evidence before him that similar mistakes had been made by a few independent critics and reviewers. Justice Harrington did not accept the argument that any confusion was due to the fact that Glen Breton has many of the characteristics of a Scotch (flavour, aroma, and so forth), and found on a balance of probabilities that the confusion was due to the use of a “glen” – prefixed mark”.
In short, the Court did not determine “that the name Glen Breton does not mislead”. On the contrary, the Appeal Court did not question Mr Justice Harrington’s findings that the name Glen Breton had caused confusion. Rather, the Court’s ruling was based on the interpretation of a particular provision of the Canadian Trade Marks Act, a perverse result of which is that a trademark acknowledged in both courts as having caused “actual confusion in the marketplace” has been allowed.
It is surprising that the Court has allowed this confusion to be perpetuated and the Association is currently considering an appeal.
A significant aspect of Canadian history centers around the immigration of numerous Scots to Canada (some of this occurring during the Highland Clearances). These hardy individuals settled in many regions of the country, including (importantly) portions of Ontario and the Maritimes. That it has taken the Canadian whisky industry so long to link directly back to the tradition of producing and marketing a single malt whisky should not be construed as an afront to those in Scotland who make and promote single malt Scotch whisky. And to suggest that the geographical descriptive "glen" somehow lies within the exclusive domain of the Scots not only doesn't make any sense, but also diminishes the history of those who, like my grandfather, ventured from Scotland to North America in search of fortune and new horizons.
That said, the whiskies emanating from the Glenora Distillery have garnered a fairly wide range of reactions, spanning the '71' score of Michael Jackson through the '80' (Glen Breton Rare) and '89' (Glenora 1990 Aged 14 Years Single Cask) scores bestowed by Jim Murray. Of course, Murray also goes on to say (in regards to the last named whisky), "And good to see the distillery use its actual name."
In the final analysis, however, quality has little to do with legality (and, specifically, the usage of the term 'glen'). If this were not so, I can easily picture any number of 'Glen This' or 'Glen That' single malt Scotch whiskies being stripped of their names.
Being game for a bit of a challenge I understand that the newest offerings are markedly improved over the 2001 bottling. I am probably going to pick one up later in the year, once my self imposed moratorium on whisky purchasing is lifted.
By the by... have you written "The Third Dram Waltz" yet?
Had I, it would likely be aimed squarely at those with steel-toed Kodiac boots.
If you get to that newer Glen Breton issue before I'm able to, Musky, please do let us know how it goes down.
Yes, one would think that a black box with a BIG RED MAPLE LEAF would scream out "Oh Canada" to even the most myopic whisky drinker. Certain factions within the mavens of whisky club appear to have overlooked even this, the most obvious of hints that it ain't Scotch!
It's a Canadian whisky and damned proud of it's heritage.
according to that article of 05 April 2007
http://thescotsman.scotsman.com/latestn ... 3273937.jp
is in the Drams by numbers section
70 Number of legal actions the Scottish Whisky Association is pursuing at any one time.
That means a considerable legal departement which has to produce actions to justify its existence.
Just a thought.
Also, it does seem a little bit like the legal department of the SWA is trying to just keep themselves busy. At least this is my opinion. I could be totally wrong but that is how I feel about it.
years ago, in the early 1960s there was a pioneering German whisky by the Name "Red Fox". The logo of that brand was - you guessed right - a stylized red fox.
The SWA objected. The name "Red Fox" in English could lead customers into believing it was a Scottish whisky. Which essentially it was.
The whisky was renamed as "Racke Rauchzart", Racke being the producer then and "rauchzart" translates as smokey-gentle because of its taste. A catchline that stuck.
The whisky is still around. In the early 1960s it was made from imported Scottish malts blended with German grain distillates blended and bottled in Germany.
Today it is made with 100% Scottish whisky and bottled in Scotland. Does that mean they can have the original name back?
The logo sitll is the stylized red fox.
Also I would have thought that if that name suggest a location anywhere other that Canada, it would be north western France as opposed to Scotland.
and what about down under?
"The Lay Association of the Free Church of Scotland founded Dunedin in 1848 as a Scottish settlement. The town's name comes from Dun Eideann, the Gaelic name for Edinburgh, the Scottish capital. In the same year they signed a treaty with the SWA never to name any whisky made in New Zealand with any term that could even hint towards the Scottish-gaelic origin. Not even in English."
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