11 May 2020TrademarksRory O'Neill

UKIPO finds no deception in ‘hidden’ mark on Scottish gin bottle

A Scottish distiller is free to use the ‘Leith Glass Works’ on its Italian-made bottles without misleading consumers, the  UK Intellectual Property Office (IPO) has said.

The decision comes after a complaint from  Gleann Mór, an Edinburgh-based spirits company, against rival Muckle Brig, which operates a  distillery in the Leith port area.

Muckle Brig owns a UK trademark for ‘Leith Glass Works’, which is branded on the base of its gin bottles.

In a 2019 filing, Gleann Mór asked the IPO to cancel the trademark as it was likely to confuse consumers as to the geographical origin of the glass bottles, which are in fact manufactured in Italy.

But the application has been rejected, with the IPO finding no likelihood of confusion among consumers.

According to Muckle Brig, the Leith Glass Works mark is intended as a tribute to the area’s historical glass industry.

As part of its evidence, Gleann Mór highlighted a tweet from one of Muckle Brig’s gin brands that says its bottles are “manufactured in Italy, but we decided to hide a reference the [sic] glassmaking industry that once existed in our port”.

Consumers could be more likely to buy bottles of gin thinking that the glass was made locally in Leith, Gleann Mór argued.

But according to the IPO examiner, the fact that the Leith Glass Works mark was “hidden” at the base of the bottle worked in Muckle Brig’s favour.

“The consumer browsing in a shop is, in my view, unlikely to inspect the base of the bottle and so the mark will play an insignificant, if any, role in this type of purchase,” the examiner wrote.

Gleann Mór said the mark should be seen in the context of Muckle Brig’s promotional materials, citing social media posts from 2018 through 2019 which didn’t clarify the true origin of the bottles.

But according to the IPO examiner, “it is the message that is conveyed today, rather than at some point in the past, that is relevant”.

They added: “The evidence shows that all the promotional material from 2019 states that the bottles are made in Italy. Prior to this, in December 2018, the message was that bottles were once produced in Leith. It is only the earliest material, notably the launch brochure, where there is some ambiguity.”

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