Tomatin loses lawsuit against hotel developer

Highland distillery Tomatin has lost a lawsuit against a local company’s move to name a hotel development after its namesake Scottish village.

In November 2019, Scotch whisky producer Tomatin launched a trademark lawsuit against The Tomatin Trading Company (TTC) over its plan to build a multi-million-pound hotel and food/retail village in Tomatin.

The lawsuit claimed that TTC has infringed the distillery’s UK trademark for the word ‘Tomatin’, which was registered on 18 January 1863 under class 33 (Scotch whisky).

TTC’s proposed development, which gained planning approval in November 2018, includes a hotel, farm shop, large restaurant, drive-through bakery, food outlet, four retail units and a petrol station.

The Scotch producer said there was a likelihood of confusion due to the proximity of the development to the distillery and its visitor centre. Furthermore, one of TTC’s planning applications had previously said the development would include a visitor centre with the intention to sell whisky, but the developer has since removed these elements.

The distiller believes that TTC’s use of the name takes unfair advantage of the brand’s reputation.

However, in a Court of Session ruling published on 6 October 2021, judge Lady Wolffe decided that the public would not make a link between the two companies.

Wolffe noted that it would be reasonable to use the word ‘Tomatin’ to identify the location of the development. Furthermore, she said that consumers will realise that it is the name of the local area, which would distinguish TTC’s project from the distillery.

In addition, it was noted that evidence pointed to the fact that Tomatin, as a producer of single malt, is ‘not well-known even to the average consumer of Scotch whisky’ in the UK.

The lawsuit read: “It is not known by a significant part of the general whisky-drinking public, which is the relevant market. The evidence has established that the reputation of the pursuer’s ‘Tomatin’ brand has not extended beyond the limited class of consumer (‘the aficionado’) of the pursuer’s products.”

Stephen Bremner, managing director of Tomatin Distillery, said: “We’re disappointed with the court’s decision but we do accept it. We maintain our position that we have no objection to the proposed development, or any development which will benefit the area.

“Our objections were of the development’s proposed branding, which we felt took unfair advantage of our reputation, built over a rich heritage spanning 120 years of dedicated craftsmanship. That said, we recognise the court’s decision and look forward to seeing the development progress.”

The Spirits Business has approached TTC for further comment.