The EU's General Court has provided guidance as to who constitutes the average whisky consumer in order to resolve a trademark dispute. The General Court upheld the decision of the Board of Appeal which, in 2015, held that there would likely be confusion between the word mark 'Clan' and the earlier word mark, 'Clan Macgregor'. The General Court judgment can be found here.
Whisky manufacturer William Grant & Sons, who produce 'Clan McGregor' branded whisky, sought to oppose the registration of the mark 'Clan' as a trademark by Speciality Drinks. The applicant argued that Scotch whisky was a drink strongly associated with masculinity that 'inspires a devoted following among its connoisseurs' who pay a high level of attention to the type of whisky and thus would not be confused by the similar trademarks.
However, the General Court rejected this view of a sub class of consumers who drink Scotch whisky. It held that whisky, as an alcoholic beverage, was an everyday consumer good and therefore such beverages are not targeted at a specialist public but rather at the much wider idea of a relevant public who are deemed to be reasonably well informed and reasonably observant and circumspect. It was on this basis that the General Court rejected the application made by Speciality Drinks.
It is interesting to note that the General Court did not entirely shutdown the idea of a specialist subcategory of consumer existing. It made clear that there may be certain categories of Scotch whisky which by virtue of their rarity or price are aimed at a limited number of connoisseurs or collectors who would show a higher degree of attention than the relevant public. Yet, in order for such a sub category to be established the applicant would need to show that the goods were directed at such a specialist class of consumers and not the general public at large.
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