The General Court of the European Union has ruled that those who purchase Scotch whisky are not an exceptional group of people, at least when they are being assessed for Trade Mark law purposes. The Court rejected the appellant's argument that whisky was "a class apart" which inspired "a near cult-like devotion in some drinking circles" and that drinkers of the alcoholic spirit were "connoisseurs". Speciality Drinks Ltd brought the case in an appeal against the EUIPO's decision to reject its application to register the mark "CLAN" following an objection raised by William Grant & Sons Ltd.

The opposition to the registration of the mark was based on the fact that William Grant held the EU Trade Mark in "CLAN MACGREGOR" in the same class (Class 33). It was William Grant's position that there was a likelihood of confusion arising between the two marks and accordingly Speciality Drinks's application should be rejected.

The EUIPO's Opposition Division agreed with William Grant, as did its First Board of Appeal. The appeal to the EU's General Court was based on the argument that Scotch whisky was not a drink like other alcoholic beverages. Therefore when applying the "average consumer" test to determine whether confusion would arise, the appellant asserted that the average consumer of Scotch whisky was of a more discerning nature.

The point that the EUIPO made, and with which the General Court agreed, was that as a general rule alcohol is an everyday consumer good which, along with other everyday goods, was the subject of widespread distribution. There were however sub-categories of these alcoholic drinks, including sub-categories of Scotch whisky, which owing to their high price or rarity would be targeted at connoisseurs or collectors. By their nature, these individuals would require to pay more attention to the detail of the individual product. But it was not the case that Scotch whisky, as a whole category of drink, fell into this specialist drinks bracket.

The General Court agreed with EUIPO's First Board of Appeal and held that Speciality Drinks Ltd had failed to show that the products, which were the subject of the disputed marks, were part of a sub-category which demanded a higher attention to detail from its customers.

The General Court did however note that the existence of the word "MACGREGOR" in the earlier mark meant that the degree of similarity was "low", as opposed to "average" as the First Board of Appeal had decided. The additional word which contained more letters and syllables than the word "CLAN", meant that the Court could only find a low degree of visual and phonetic similarity.

However, the Court ultimately came to the same conclusion as that reached by the EUIPO. In light of their finding a low degree of similarity, the Court looked to see whether this would ultimately affect the original rejection by the EUIPO. The Court did not find this to be the case and held that a likelihood of confusion still existed. In its assessment, the Court reviewed the nature of the average consumer. The average consumer will be reasonably well informed and reasonably observant and circumspect. However, and of vital importance in the assessment that was carried out, the average consumer only retains an imperfect picture of the different signs.

When all of these particular points are considered in turn; Scotch whisky being the subject of general distribution; the level of attention of the relevant public; the degree of conceptual similarity of the signs; and, the case law in relation to the average consumer, there was sufficient reason to expect that confusion would arise between the two signs.

This decision from the General Court is a restatement of long-standing legal principles in Trade Mark law. The concept of the "average consumer" is universally accepted as being the standard against which to assess the likelihood of confusion. The General Court was happy to accept that in certain circumstances, and even where products are usually the subject of widespread distribution, there can be sub-categories of that product which are considered "special". Where such a sub-category exists, its very nature will change the relevant public that the product is targeted at. An average consumer within a special group, for example whisky connoisseurs, will, it is assumed, pay a higher level of attention to the detail of a whisky product.

However in order to rely on this argument, the party seeking to categorise their product as special will need to prove this to the Court, or the EUIPO in the first instance. It is in this regard that Specialist Drinks failed and as such had their appeal dismissed.