The key to ensuring the heritage of Scotch isn’t diluted

The Scotch whisky, and drinks industry in general, has been busying itself with two major changes which are set to mix up the sector in the coming year.

Minimum pricing has just been introduced in Scotland, with calls for England and Wales to follow suit gathering momentum.

Much of the discussion in the sector has been taken up by Brexit and what it could mean for the lucrative and essential export market.

Eve Brown, trainee trade mark attorney for Marks & Clerk LLP, discusses what this means for the industry.

She said: ‘Despite uncertainty, many are in careful planning to ensure an industry which contributes nearly £5bn a year to the UK economy continues to thrive when the UK leaves the EU.

‘In order to do this manufacturers will need to maintain and build on existing EU relationships, whist enhancing Scotch Whisky exports in Asia and North America – and of course any strategic planning should include considerations to ensure IP rights are secured for both present and future branding exercises.

‘As a full service IP firm, with a number of offices across the EU, Asia and North America, Marks & Clerk LLP is fully immersed in these ongoing developments.

‘We are actively working for clients to reduce the risk of infringing existing trade mark rights in other jurisdictions by conducting searches to ensure that the marks are available for both use and registration.

‘Marketing departments are brainstorming the perception of Scotch across the pond and further afield, and whilst many will naturally have eyes on the bottom line, IP should never be far from their minds.

‘Whisky was born in Scotland and as such “Scotch” has been at the forefront of the sector ever since.
Industry leaders are already well aware of the importance, within marketing spheres, of having a strong geographical indication (GI) and the accompanying heritage, esteem and value that comes with producing Scotch Whisky.

‘This becomes all the more relevant as the industry looks to drive itself into other markets, targeting those who perhaps wouldn’t opt for whisky as their drink of choice.

‘Due to the uncertainty of Brexit, and how it will affect the validity and enforceability of EU trade mark registrations in the UK, it is also now as important as ever for Scotch Whisky brands to ensure they have robust UK trade mark rights protection in place.

‘Scotch has long had its place as the doyen of whisky; the classical grandmaster developed with centuries of expertise, handed down through generations and forged in the wilds of the Highlands and Islands.

‘We are in post-modern times though, and whilst purists will always scoff at the thought of putting whisky in a cocktail or buying a bottle based on the endorsement of David Beckham, Scotch is taking a new look at how it markets itself.

‘Producers will still look to harness the heritage of their product and the slogans, branding and unique processes which are used to do so are all intrinsically linked to Trade Marks and IP.

‘There are almost 100 Scottish distilleries and trade mark protection should already be front and centre of the minds of those who operate in an already crowded marketplace.

‘This protection becomes all the more prevalent as brands look to develop and move into other markets, competing for those who don’t immediately consider whisky.

‘Another means by which a brand could look to garner strong buy-in is to hang its Scottish heritage on a process which is unique to that distillery, perhaps handed down over generations – and that is something which undoubtedly needs strong patent protection.

‘If Scotch is to continue as the master of the whisky industry, it must ensure it has to find a way to appeal to the masses without diluting the heritage of its produce and IP is key to this.’

Marks & Clerk is the largest firm of intellectual property advisers in the UK and is recognised as one of the world’s leading IP firms. The firm has Scottish offices in Glasgow, Edinburgh and Aberdeen.