Welcome to the eighth instalment of Scran & sIPs™ - the winter edition of the quarterly publication by Marks & Clerk that focuses on Intellectual Property and the Scottish Food and Drink industry.
In this edition of Scran & sIPs™, Erik Rõuk and Martin Gutwillinger from our Luxembourg office talk about the Benelux trade mark system; Paul Chapman reflects on DIY beer; Julie Canet discusses the Advertising Standards Authority’s ruling on an advert by Bill’s Restaurants; and Andrea Williams revisits the plant variety right regime in the UK post-Brexit. Sarah Baillie from creative agency StudioLR provides some tips on how to make your brand stand out, and we have some interesting Q&As from Dunnet Bay Distillers, The Scotch Whisky Experience, and Brew Toon. We speak to Kate Adamson and Gavin Cullen in our Meet the Team section, and the team have sent in some pictures of their Christmas decorations.
We wish you, your colleagues, family and friends a very Merry Christmas, and health and happiness in the New Year!
If you drink beer and like craft beer, I would be surprised if you have not tried one or more BrewDog beers at some point. Although not without some controversy, BrewDog is certainly a Scottish success story and they are not afraid to try something different. Their marketing campaigns often raise an eyebrow or two.
Moreover, the company is now more than 25% owned by its employees and shareholders, or Equity punk community, as they like to call them. Their bars also share 50% of their profits with their workers. I recently had the opportunity of visiting one of their bars in Cleveland, Ohio.
It is clear that they like to see themselves as different and in 2016 BrewDog decided to share all their recipes online. To say this is unusual is perhaps an understatement. BrewDog’s recipes are their intellectual property (IP) and companies do not generally give away their secrets freely. I am sure you will be aware of an orange coloured Scottish soft drink, made from girders apparently, the recipe of which is a closely guarded secret. Thus, when it comes to recipes, a company would generally not want others to know what it is, although people may try to copy it.
However, the idea of providing others with knowledge of your IP is not entirely unique. For example, open-source software is computer software that is released under a license that the copyright holder grants someone the right to use, change, and distribute the software and its original source code to others. One benefit of this, is that it leads to further development of the software and also allows others to iron out any flaws etc. Nevertheless, I doubt BrewDog are necessarily hoping that others can improve on their recipes, but I guess you can always write to them if you think you have.
If you go to BrewDog’s website you will find a section called “DIY DOG”, which is dedicated to sharing their recipes.
Quite why they decided to share all of their recipes I am not sure, although their website says “sharing is caring…”. Perhaps we can invite them to contribute to a future edition of Scran & sIPs™, so they can explain some of the background and why they feel it is important to share their recipes. All I can say is, I am glad they did.
I love BrewDog beers and Punk IPA is one of my all-time favourite beers. I am an all-grain home brewer, so at some point it was inevitable that I would want to try and make my own BrewDog copy (or clone as it is termed in the home-brew field). So recently I purchased the grain, hops (which even BrewDog describes as being an insane amount) and yeast, and set about making my own batch of Punk IPA. Of course, as anyone will know, following a recipe does not always ensure that you get exactly the same result at the end of the day and my home brew set up is at a slightly different scale to what BrewDog employ.
Nevertheless, I was very pleased with the outcome. I am sorry that you cannot taste it here, but I can assure you it is very tasty. I have not done a side-by-side comparison with actual Punk IPA, perhaps I will, but does it really matter? I am pleased with the outcome, it is Punk IPA-like and surely that is all that matters. I still have a few bottles left. Will they last until Christmas, probably not.
A restaurant in London was recently told by the Advertising Standards Authority (ASA) that their ads breached the Advertising Codes on the basis that they condoned and encouraged the excessive consumption of alcohol and unwise drinking, and were socially irresponsible.
Bill’s Soho, one of the chain’s London restaurants, had seen last summer’s weather as a marketing opportunity and issued adverts headed “Bottomless Prosecco to beat the heat! [two flutes of champagne emoji]”. The body of the ad featured the sub-heading “ENJOY BOTTOMLESS PROSECCO THIS HEATWAVE WEEKEND” and the text stated:
“Select any item […] and enjoy 90 minutes of unlimited prosecco for just £16.50 per person. What else could you wish for? Our all day brunch menu features naughty favourites […] all washed down with a lovely glass (or several) of prosecco”.
A complaint was issued with the ASA, on the question of whether the ads were socially irresponsible because they implied, condoned, or encouraged excessive consumption of alcohol.
Bill’s made the following main comments in response:
They are a restaurant chain which is generally not perceived by the public as being associated with the excessive consumption of alcohol or as a purely “drink based” establishment.
The ads made it clear that the Bottomless Prosecco promotion was exclusively available with the purchase of a meal, with the majority of the wording being used to describe and promote the food element of the promotion.
The phrase "a lovely glass (or several) of prosecco" implied that some consumers would have only one glass with their meal. There was no emphasis on the word 'several' (e.g. through the use of an exclamation mark).
They did not feel that the whole phrase, in context, encouraged excessive drinking.
However, they did accept that the ads’ use of the phrase “beat the heat” or to enjoy bottomless prosecco “this heatwave weekend” could be interpreted as encouraging consumers to drink prosecco in the hot weather.
ASA Ruling on Bill's Restaurant (cont'd)
They did not intend to encourage or promote excessive drinking or irresponsible behaviour by using those phrases and would not use them in future.
The ASA took the view that the phrase “a lovely glass (or several) of prosecco”, within the context of the offer’s 90-minute duration, condoned and encouraged excessive drinking. In particular, it was noted that “several” would be understood to mean at least three glasses, and that the term’s vagueness risked implying that consumers might lose track of the number of glasses they had consumed.
The ads further positioned the unlimited alcohol offer as a way of coping with the heatwave and implied that prosecco, because it was refreshing, was well suited to consumption in heatwave weather, (which was at odds with government advice). The ads therefore irresponsibly encouraged excessive drinking in circumstances where the excessive consumption of alcohol was especially dangerous.
Bill’s Soho were asked to ensure their ads contained nothing likely to lead people to adopt unwise styles of drinking, including excessive drinking during a heatwave.
Brands should be careful when issuing ads offering bottomless drinks, in particular during a specific duration and in extreme heat. I have to admit that this decision does make me consider my drinking habits, as I don’t believe a glass of prosecco has ever lasted me 90 minutes!...
About the ASA
The Advertising Standards Authority was established in 1961 and is the UK’s independent advertising regulator.
They respond to concerns and complaints from consumers and businesses and take action to ban ads which are misleading, harmful, offensive or irresponsible.
As well as responding to complaints, the ASA monitors ads to check that they are following the rules.
The types of ads they deal with include:
Radio and TV ads (including teleshopping presentations)
Ads on the internet, smartphones and tablets
Ad claims on companies’ own websites
Commercial e-mail and text messages
Leaflets and brochures
Ads at the cinema
Complaints are assessed against “prioritisation principles” to determine the most appropriate course of action. Under these principles, the ASA will:
consider what harm or detriment has occurred or might occur;
balance the risk of taking action versus inaction;
consider the likely impact of intervention; and
consider what resource would be proportionate to the problem.
The ASA will contact the advertiser whenever a complaint indicates that an ad might have broken the rules, but may not start a formal investigation into every case (around 80% of complaints do not raise any problems under the rules).
In 2021, they resolved 43,325 complaints relating to 22,115 ads.
Here at Scran & sIPs™ we love hearing about young brands that already have a legacy. I understand the Dunnet Bay story begins before the company was born – back in your student days. Can you tell us more about how things all started?
Dunnet Bay Distillers Ltd is a family-owned business established and managed by myself and my wife Claire. We are both native to Caithness and when we were at university we would dream about one day opening a local business.
After graduating I went down a chemical / process engineering career route in an offshore plant within the oil and gas industry and Claire turned towards hospitality and tourism. When the opportunity presented itself for both of us to return home to create a business, the idea of Dunnet Bay Distillers was settled. The aim was to create jobs in Caithness so that we could live, work and raise a family in our home village.
You had been living and working in France, but dreaming of doing business in Scotland, what enabled you to pursue the dream?
We had always dreamed of owning our own distillery, but were financially constrained due to The Excise Act, which stated that the minimum size still you could operate to get a licence to distil spirits was 1,800 litres. In 2008 that size of still would have cost over £75,000, so it was sadly always too big and too expensive for us to afford.
Thankfully that all changed when Sipsmith successfully challenged the law as they wanted to set up a new business distilling gin in a small 300 litre traditional copper pot still. The change in law blew the gin market wide apart and changed the face of the industry forever. It is now commercially viable for people to distil gin on a small scale for the first time in centuries!
The change in the law gave us the opportunity to move home to Caithness, build our own house and build Dunnet Bay Distillery. Once the distillery’s first copper pot still was installed we perfected the recipe for Rock Rose Gin and aimed to make about 10,000 bottles in our first year of operation.
We ended up making and selling 9,000 bottles in the first quarter of distilling and the first batch of Rock Rose Gin sold out through pre-orders within forty-eight hours of release. That was in 2014 and we have never looked back.
Your copper stills – Elizabeth and Margaret! – are beautiful, but huge, bits of kit. How did you know where to start?!
‘Elizabeth’ and ‘Margaret’ were made by John Dore & Co. Ltd, the oldest still maker in the world. I had lots of experience working with big process equipment in my previous career, and was delighted to work with John Dore & Co. Ltd to design the two ‘girls’.
Similar to ship building, it is a tradition in distilling to give your still a lady’s name. Our first still was named ‘Elizabeth’ after Her Majesty Queen Elizabeth The Queen Mother. She was a frequent visitor to Caithness, spending three weeks in August at the nearby Castle of Mey, then returning every October to escape from the pressures of a busy royal life. Her favourite drink was rumoured to be a gin and Dubonnet, so it was only right to name our first still in her honour.
The second still is called ‘Margaret’ after another very special lady, Claire’s mum, Margaret Calder. Margaret is the distillery’s production supervisor. She has been an absolute super star to work alongside, bringing organisation and control to the initial unstructured chaos. With a methodical and organised mind and a wicked sense of humour, Margaret has implemented structure and routine into Dunnet Bay Distillery, helping the business to grow and diversify.
Your technical knowhow has clearly proven invaluable – but what about the marketing, more consumer-focused side of the business? What are some the valuable lessons you’ve learned here?
Claire’s burgeoning background in hospitality and tourism meant that her skills were well suited to developing and managing the customer focussed side of the business – aspects like marketing, retail, tours, and events.
Dunnet Bay Distillers Q&A (cont'd)
As a duo, we never dreamed that one day we would employ 16 people and win Scottish Gin Distillery of the Year at the 2019 Scottish Gin Awards and see the Company’s multi-award-winning Rock Rose Gin and Holy Grass Vodka distributed and enjoyed by people all around the world!
Importantly, both of us have learnt to trust our own instincts, take advice where we need to, and listen to the team who understand the business and its customers.
The current economic climate is challenging for business owners – what advice would you have for someone starting out now?
We often say that running your own business is a bit like being on a roller coaster ride. You enjoy the ‘ups’, and just deal with the ‘downs’ knowing that there is a way to resolve whatever set-back you are currently experiencing and that things will eventually work themselves out. However, it’s incredibly important to trust your own instincts and do what is right for you, your team, and the local community. It’s key that as a team you develop your own unique culture and resist the temptation to implement a boring, uniform corporate policy. However, we cannot stress this enough, don’t be afraid to innovate!
You employ 16 people in Caithness, can you tell us a bit about the role of Dunnet Bay in the local community?
We are incredibly proud that Dunnet Bay Distillers Ltd has a history of engaging with a wide range of community partners. We often run events and educational initiatives to develop employment opportunities for young people and to promote the natural and cultural heritage of the area and the history of gin and vodka as a key resource.
We also work with many local artists and craftspeople, through competitions and under commission, to create artwork for display and use in labelling, our distillery, shop and tasting room.
Our ‘Inspired by Gin’ exhibition in 2019/20 was aimed at attracting out-of-season tourists when few attractions in the North Highlands were open to the public. We used the distillery’s Visitor Centre to display artwork submitted by artists and craftspeople from across the UK including paintings, ceramics, textiles, glass, and sculpture.
We got together with several artists and allowed them to interpret the theme ‘Inspired by Gin’ in a variety of ways, from the botanicals used to make Rock Rose Gin, the landscape of Caithness to the history of gin.
The exhibition included artwork for sale, workshops, and artist talks. Following that success we have just opened our 2022/2023 winter exhibition ‘Holy Grass Hero’ commemorating Robert Dick the Victorian era Thurso baker, botanist and local hero who rediscovered Northern Holy Grass (Hierochloe borealis) growing on the banks of the River Thurso which is used to make our Holy Grass vodka range.
We’ve read that your goal is “to create spirits which reflect the Caithness way” – can you explain what you mean by this?
Dunnet Bay Distillery is a magical place that makes spirits which are inspired by and embody Caithness, its unique cultural and natural heritage, and its people. Given this, our ethos is based on six core values:
Dunnet Bay Distillers Q&A (cont'd)
Authenticity – We ensure to hand distil slowly, thoughtfully, and passionately in order to create exceptional products using traditional copper pot stills, Highland water and hand-foraged botanicals sourced from the spectacular cliffs of the Pentland Firth, Dunnet Forest or grown in the distillery's own garden.
Flavour – Rock Rose Gin is like other gins in some respects because it does have a predominant juniper flavour and all the traditional ingredients you would expect to find in gin.
However, what makes the flavour of Rock Rose Gin so special is the carefully selected collection of local and traditional botanicals used by Dunnet Bay Distillers to make our gin. In fact, the name Rock Rose comes from one of these botanicals, Rhodiola rosea, commonly known as the rose root, which I discovered on my first botanical forage along the Caithness cliffs. Rhodiola rosea is a real earthy rose which adds a delicate floral note to the gin.
Rock Rose Gin is also made with other interesting ingredients like rowan berries, which grow across the road from the distillery in Dunnet Forest and blaeberries which bring a nice jam taste to the middle of the drink, then you’ve got lemon verbena and Bulgarian juniper that add a nice lemon sherbet finish to the gin.
Interestingly, Holy Grass Vodka is also a celebration of the flavour of local produce and ingredients, the spirit is infused with a carefully crafted vapour of Highland apples and apple juice, to complement the sweetness of the Holy Grass. The result is a delicate and fresh vodka with a creamy smooth finish.
The hero botanical Hierochloe odorata is a delicate, sweet-scented grass known by several common names such as Holy Grass, Bison Grass, Sweet Grass, and Vanilla Grass.
Holy Grass is one of the United Kingdom’s rarest plants. It is only found growing in a few places in Scotland including beside the banks of the nearby Thurso River.
Heritage – The different botanicals we use to make Rock Rose Gin and Holy Grass Vodka are predominately chosen for the flavour they will add to our spirits but where possible we also like to use botanicals such as rowan berries that have stories that reflect the cultural and natural heritage of Caithness attached to them.
For instance, did you know that the rowan tree is associated with the Norse god of thunder Thor, who our nearest town Thurso is named for? According to Norse mythology, Thor once used a rowan tree to pull himself from a river to safety, thus rowan trees are considered in old Norse areas of the world to be holy trees and trees of protection.
Caithness was settled by Vikings from Norway from the mid-9th century AD onwards, so stories like this are a great way to showcase both the natural and cultural heritage of Caithness, making a drink of Rock Rose Gin or Holy Grass Vodka a little bit of history, myth, and magic in a glass!
Innovation – We are not afraid to innovate whilst remaining true to our core values of Authenticity, Flavour, Heritage, and Tradition. Innovation extends from our new recyclable packaging, ever developing guided tour offer and the creation of new spirits.
Sustainability – Our independent family-owned business provides much needed employment in a fragile rural economy. We generate our own electricity using solar panels on the distillery roof and were proud to offer the first gin available in fully recyclable pouches that can be returned to us freepost via standard Royal Mail.
Dunnet Bay Distillers Q&A (cont'd)
Once at the distillery, the pouches will be passed on to be upcycled into new items. We also use local botanicals and Highland water in the production of our spirits.
Tradition – Our bespoke pot stills have been uniquely designed just to create our spirits. Using a traditional handmade copper head along with botanical vapour basket, it is a small batch process of 500 litres. This ensures tremendous care can be applied to achieve best results.
2023 marks your tenth anniversary – congratulations! How are you planning on marking this milestone?
That is a surprise! You will have to visit our website www.dunnetbaydistillers.co.uk and social media pages to find out what exciting products and events we have planned. Or better yet, come visit us in person!
Finally – the festive season is well and truly upon us – what seasonable Dunnet Bay tipples would you recommend to our readership?
Our newest gin – Smoked Orange – created by our ScotGrad Scheme funded distiller Craig Chambers, is very Christmassy. This gin uses fine Lapsang Souchong tea to deliver smoky notes to enhance zesty organic orange peel, which is complemented by tangerine sage and lemon verbena grown in the geodome at Dunnet Bay Distillery.
For vodka drinkers our Holy Grass Vodka Cold Brew Coffee Edition is perfect for Christmas and the New Year. The hero botanical Holy Grass which has a creamy vanilla taste is blended with ethically sourced coffee from Ovenbird Coffee Roasters in Glasgow to create a lovely dark chocolate and vanilla spirit, which can be used to make a fabulous Espresso Martini.
The Benelux Union is a politico-economic union between Belgium, Luxembourg, and the Netherlands. The union was first envisaged in the year 1944 when the exiled representatives of the three countries signed the London Customs Convention, which established the Benelux Customs Union. The Benelux Economic Union came about in 1958 and became the model for future European integration. Indeed, the economic and political co-operation between the Benelux countries inspired further European co-operation and may be considered one of the forerunners of the European Union.
At the time of writing this article, the Benelux Union boasts a population of roughly 30 million residents, and a combined GDP of EUR 1.431 trillion while covering only 1.7% of the surface landmass of the EU.
In terms of intellectual property, the Benelux Union was also one of the forerunners, setting the basis for a regional unified trade mark system. The Benelux Convention Concerning Trademarks was signed on 19 March 1962 and entered into force on 1 July 1969. It also established the Benelux Trademark Office to implement the convention with an existence separate from The Benelux Union itself.
Soon thereafter, in 1974, the Benelux Treaty on drawings and designs was signed, and the Benelux Office for Drawings or Designs entered operation. It is thus that the scene had been set for regional intellectual property development, which introduced concepts such as unitary regional trade marks and designs, and seniority derived from earlier national rights.
In 2006 the Benelux Convention on Intellectual Property entered into force, replacing the multiple previous rules and conventions with a single treaty, modernising the IP landscape in the region and bringing about the current Benelux Office for Intellectual Property (BOIP). In 2021, the BOIP celebrated its 50th birthday. Although the importance of national offices has somewhat diminished in the field of trade marks and (industrial) designs with the success of the EU Intellectual Property Office and EU-wide unitary protection, the Benelux Office for Intellectual Property remains an important organisation for economic development in the region.
Trade mark filing figures have been around 20,000-21,000 for the past five years, with increased figures coming close to 24,000 applications in the most recent two years, 2020-2021.
Country in focus: Benelux (cont'd)
This article aims to take a closer look at the Benelux system and what makes it stand out in the European intellectual property family.
How is Benelux trade mark law structured?
Contemporary trade mark law in the Benelux is governed by the Benelux Convention on Intellectual Property (trademarks and designs) (BCIP) and its implementation and functioning is overseen by the BOIP, based in the Hague. The Benelux Union is also party to a number of international agreements, such as the Paris Convention, the Madrid Agreement and Protocol, the TRIPS agreement, and others.
As such, the Benelux Union has similar membership of international treaties related to the regulation of intellectual property as other member states of the European Union. For example, it is possible to designate the Benelux via International Registrations, and it is possible to claim priority from Benelux trade mark applications. Being part of the European Union (and all 3 Benelux countries are founding members of the European Economic Community) has resulted in the harmonisation of Benelux trade mark laws with that of the EU.
It is important to note that although the individual countries fall under the umbrella of the BOIP and the Benelux trade mark system, they have retained their separate court systems for proceedings relating to, for example, IP infringement. The BCIP sets out that the authority of court decisions handed down in one of the three States shall be recognised by the other two States, if the decision is no longer open to opposition or appeal by a court of cassation. The Benelux have also established the Benelux Court of Justice, which has the power to hear questions concerning the interpretation of the BCIP and its implementing regulations.
The BOIP has two official languages – French and Dutch. The working languages of the BOIP are Dutch, French, and English.
Documents relating to transfers, priority, licences etc. will also be accepted, if drawn up in German.
In opposition matters, the language will normally be the working language that the application was filed in, unless the application was filed in English in which case the opponent can choose which working language (English, French, or Dutch) to rely on in the proceedings. If the application is the designation of an International Trade Mark registration, the opponent can choose the language but the applicant will be given the opportunity to disagree and choose one of the other official languages (Dutch or French).
The same language rules also apply to revocation and invalidity proceedings. The parties may also jointly choose one of the working languages of the office. The underlying principle is that the applicant cannot be forced to use a language he does not understand, but the opponent can file his submissions in his preferred language, which will then be translated by BOIP.
Registered vs unregistered rights
Under the BCIP, with the exception of owners of well-known trade marks within the meaning of Article 6bis of the Paris Convention, there is an obligation to register trade marks in order to rely on them. Or, in other words, no one may claim in court protection for a sign deemed to be a trade mark, unless that claimant can provide evidence of registration of the trade mark which it has filed.
Country in focus: Benelux (cont'd)
The law does not preclude right owners from invoking “ordinary law”, which allows for objections to be raised against unlawful use of signs which are not regarded as trade marks under the BCIP.
In other words, the BCIP does not recognise unregistered trade marks. However, other unregistered rights may potentially be relied upon under the national laws of the member states i.e. Belgium, Luxembourg, and the Netherlands. For example, Belgium and Luxembourg offer limited protection to trade names and company names. The Netherlands provide limited protection for trade names. Such protection will normally be very narrow, subject to use, and limited to the geographical area where the name is used.
The registration of a Benelux trade mark, however, provides prima facie evidence of rights in the trade mark which extends across the whole Benelux territory. Although the validity of a registration can be challenged, unlike with unregistered rights, the existence of the registration does not have to be separately proven by filing evidence or demonstrating use of the mark in commerce unless five years have passed since its registration.
As with the EUIPO, the Benelux office does not require a professional representative to be appointed at the time of filing the application but it does require an address for correspondence in the European Economic Area (EEA).
Any professional representative with an address for correspondence in the EEA can act before the BOIP.
If the BOIP has any reason to doubt the representative’s authorisation, it may request a Power of Attorney for confirmation. Otherwise, a Power of Attorney is generally not required and authorisation is presumed.
Once an application is filed, it undergoes a formalities and absolute grounds examination. Following a successful examination process, the trade mark will be accepted and published for opposition purposes. The opposition period for Benelux trade marks lasts two months from publication and is not extendable.
Should no oppositions be filed, the trade mark application will progress to registration soon after the expiry of the opposition period and a digital registration certificate will be issued by the BOIP. No paper registration certificates are issued – although it is possible to order a certified copy. The usual timeframe from application to registration is 3-5 months if no objections are raised.
The BOIP offers an “accelerated registration” procedure by the payment of an official fee. In this process a registration can be granted within days. This registration can then also be used as a basis for enforcement.
However, the registration is provisional only – a 2 month opposition window and substantive examination follows the initial registration, so further refusals could be issued.
Nevertheless, the accelerated registration procedure does provide the option for quickly obtaining a registered trade mark for use in enforcement, anti-counterfeiting activities, domain name disputes, etc.