SWA not giving up on Glen Breton

I live in the outskirts of a state capital community heavily populated by people, cats, deer, wild turkeys, politicians -- and lawyers. Some of us view the latter as different than you and I.

Nevertheless, some of the species can be nice guys, such as David Williamson (left), public affairs manager of the Scotch Whisky Association. I've had a dram or two with him on his home turf in Scotland, and we've debated a number of topics in courteous fashion.

William M. Dowd photo

Thus, I know whereof Williamson speaks when he insists some pertinent details of the SWA's legal battles against the Canadian whisky Glen Breton are not over despite several governmental bodies ruling in favor of Glenora Distillers' use of that name.

The SWA contends the name Glen Breton misleads consumers into believing the whisky is distilled and matured in Scotland. A Canadian federal court initially agreed with the SWA. Then Canada's Trade-Marks Opposition Board sided with Glenora. So, the SWA took its case to court again, but the Federal Court of Appeal upheld Glenora's registration of Glen Breton as the trademark of its single malt.

Says Williamson:

"I wanted to make you aware that some of the wider reporting of the recent court ruling was inaccurate. The post ruling statement by Glenora Distillers International Ltd. claimed that the Canadian appeal court found that the name Glen Breton does not mislead consumers as to the product's origin. That statement is wrong.

"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 -- flavor, 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.

"We find it surprising that the court has allowed this confusion to be perpetuated, and we are considering an appeal."

Stay tuned for the next round in this ongoing kerfuffle.

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