Duncan Taylor loses Loch Ness trademark spat

20th December, 2019 by Nicola Carruthers

Aberdeenshire-based whisky producer Duncan Taylor has lost a trademark battle against gin and absinthe maker Loch Ness Spirits over the use of the famous Scottish loch’s name.

Loch-Ness-Absinthe

Lorien and Kevin Cameron-Ross founded Loch Ness Spirits in 2015

Scotch whisky producer Duncan Taylor filed an application to invalidate six trademarks registered by Inverness-based Loch Ness Spirits on 18 November 2018.

The six marks are: Loch Ness Gin, Loch Ness Vodka, Loch Ness Rum, Loch Ness Whisky and Loch Ness Spirits, as well as a Loch Ness Spirits logo.

As outlined in the UK Intellectual Property Office’s (IPO) decision, Duncan Taylor argued that one of the first brands it launched was called Loch Ness Whisky, which came to market through its subsidiary, The Original Loch Ness Whisky Company.

In addition, Duncan Taylor said it had moved away from brokering casks of whisky to “focus on the production and marketing” of its brands. As such, it believes that the marks give a “misrepresentation” that Loch Ness Spirits is associated with Duncan Taylor.

Duncan Taylor’s chairman Euan Shand, who is also a director of The Original Loch Ness Whisky Company, said the ‘Loch Ness’ trademark has been in “continuous use” since 2008 and is applied to goods by the sister firm under an implied license.

However, evidence indicates that The Original Loch Ness Whisky Company filed dormant company accounts between 2009 and 2016.

In its defence, Loch Ness Spirits said that Loch Ness is a “well-known place in Scotland” and that the country is associated with spirits production, in particular whisky. It also said the term relates to its geographical origin rather than its use in spirits.

The gin and absinthe producer also said it mainly uses the mark for its association to the iconic monstrous sea creature, rather than the words ‘Loch Ness’.

Lorien and Kevin Cameron-Ross, a doctor and retired detective, founded the Loch Ness Spirits company in 2015. The firm released what it claims is Scotland’s first absinthe blanche last year.

Lorien Cameron-Ross chose to use the name because her family have lived on the banks of Loch Ness for more than 500 years and the distillery is located there.

Rejected submission

The IPO rejected Duncan Taylor’s submission that it had been marketing Loch Ness Whisky under The Original Loch Ness Whisky Company since 2008.

The only evidence that claimed Duncan Taylor produces Loch Ness Whisky was in an extract from a spirits retailer’s website from 2019.

Furthermore, the IPO said that Duncan Taylor “did not start selling goods to the public until July 2016, by which time applications to register four of the six contested marks had been filed”.

The IPO also said that Duncan Taylor’s UK sales of Loch Ness Whisky were “small scale”. It read: “Over the two years 2013 and 2014, there were only 29 sales to 12 UK locations amounting to a total of £3,460 worth of whisky. And sales appear to have reduced further after that.”

In its decision, Duncan Taylor was ordered to pay Loch Ness Spirits £3,200 (US$4,170).

‘Very detrimental’

Lorien Cameron-Ross, co-owner and founder of Loch Ness Spirits, said: “We are a fledgling company and the diversion of our time, energy and resources to fight this case has been very detrimental to us.

“When you are such a tiny organisation, spending time on one task means others are not being attended to. This case has been the difference between us making a profit and not even breaking even. Personally, we feel a bit bruised and battered but very relieved the judgement has been made in our favour. We anticipate moving forward in 2020.

“We want to continue creating top quality products that are authentic and protect our provenance and heritage. We are the only distillery on Loch Ness and we, and our community, are fiercely proud of this. We plan to continue showcasing the excellence that the Scotland food and drink sector has to offer, on a world stage.”

In a statement, Duncan Taylor Scotch Whisky said: “On the advice of counsel, and an impending appeal, we cannot comment further at this time.”

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