## Facts

- A trade association representing the Scotch whisky industry challenged the marketing of a German whisky sold online under the name “Glen Buchenbach.”
- The whisky was produced in Germany in the Buchenbach valley; the label indicated German origin and the place of production.
- The association alleged that “Glen” is strongly associated with Scotland and is commonly used in Scotch whisky branding, thereby calling to mind the protected geographical indication (GI) “Scotch Whisky.”
- A German regional court requested a preliminary ruling on the interpretation of Regulation (EC) No 110/2008, Article 16(a)–(c), which protects registered GIs for spirit drinks against certain forms of use, evocation, and misleading indications.

## Issues

1. Under Article 16(a), does “indirect commercial use” require the disputed designation to be identical or visually/phoneticly similar to the protected GI, or can mere association suffice?
2. Under Article 16(b), what is the test for “evocation” of a GI, and may the court consider contextual elements such as accurate statements of true origin?
3. Under Article 16(c), may truthful contextual information (e.g., “German product”) neutralize a potentially misleading indication about origin?

## Decision

- Article 16(a): “Indirect commercial use” exists only where the disputed element is identical to the GI or visually and/or phonetically similar to it; mere associative reference is insufficient.
- Article 16(b): “Evocation” depends on whether, for the average European consumer, the disputed designation triggers directly the image of the product whose GI is protected; contextual indications of true origin are not considered for this assessment.
- Article 16(c): A false or misleading indication as to origin cannot be cured by additional truthful information about the product’s actual origin; otherwise Article 16(c) would lose practical effect.
- The court did not determine whether “Glen Buchenbach” infringed Article 16(b) or 16(c), leaving application of the tests to the referring national court.

## Legal Principles

- GI protection for spirit drinks distinguishes among: (a) use of the GI or closely similar signs, (b) evocation based on consumer perception, and (c) misleading origin indications.
- Article 16(a) targets use that appropriates the GI through identity or phonetic/visual similarity; conceptual allusion alone does not qualify.
- Article 16(b) applies where the designation creates a sufficiently direct link in the average EU consumer’s mind to the GI-protected product; disclaimers or accurate origin statements do not negate evocation.
- Article 16(c) focuses on whether an element of the description or labelling is false or misleading as to origin; surrounding truthful context does not neutralize the misleading element.

## Conclusion

The CJEU held that indirect commercial use of a spirit-drink GI requires identity or visual/phonetic similarity, while “evocation” and misleading-origin analysis turn on the disputed designation itself and are not offset by accurate origin disclosures, leaving the infringement determination to the national court.


Scotch Whisky Ass’n v. Klotz, Case C-44/17 (C.J.E.U. 2018)