LAST ORDERS FOR CARDHU?

The BBC reports on a storm brewing in the Highlands. Diageo, the distillers of Cardu whisky have started using the Cardhu name and label on a mixture of vatted malts sourced from various distilleries. Previously the name had only been used on a single malt produced exclusively by the Cardhu distillery in Knockando. Whisky-lovers and rival distillers are unhappy, claiming that the continued use of the name is misleading and damages the reputation of single malt whiskies. Diageo explains that it is necessary to use the name on blends because stocks of Cardhu are running low, thanks to the popularity of the product in countries such as Spain, Italy, Greece and France. It claims that any confusion will be averted because it has been transparent about making the change and will sell the blends as “pure malt” rather than “single malt”.

The IPKat has been known to enjoy a wee dram but he cautions that trade marks are liable for revocation under s.46(1)(d) of the Trade Marks Act 1994 if they are used in a way that is liable to deceive the public. This provision is expressed in broad terms and does not explain what sort of use is regarded as being deceptive.

Drinkers of CARDHU whisky have been taught to expect a whisky that comes from a single distillery,by the use of the accompanying term "single malt". It may therefore be argued that, by using the CARDHU mark on a whisky different to that which the public has been taught to expect, the use of the same mark in relation to a blended whisky will mislead the public. This argument depends on the assumption that deception is established through the context of the use to which a mark is put rather than through the nature of the mark itself. If this argument holds true, then trade mark owners might find it difficult to change any product which is known to have certain specific qualities or to come from a single source.

Whether Diageo’s use is deceptive will depend on whether the public previously perceived the whisky as coming from a single distillery and whether they still perceive it as coming from that distillery or if the use of the term “pure malt” has dispelled this perception.

Learn about whisky here
How to visit Cardhu distillery here
Music to drink Cardhu to here (track 15) and here (track 3)
Seeing whisky in your sleep? Click here