Your definitive guide to intellectual property for the Food & Drink industry in Scotland

SCRAN

/skran/

Noun. Food.

"We canny go out on an ​empty belly — any chance ​of some scran?"

Issue 9 - Spring 2023

Co-editor

Jason Chester

Senior Associate

jchester@marks-clerk.com

Co-editor

Julie Canet

Associate

jcanet@marks-clerk.com

Co-editor

Ann Lee

Trainee Trade Mark Attorney

alee@marks-clerk.com

A shot of M&C news

It has been an eventful few months for the Scotland Team. Firstly, a huge thank you to The Borders Distillery for being our shirt sponsor for the Business Fives Football Tournament in March. We raised over £600 for Four Square (Scotland), which supports people who are homeless or at risk of becoming homeless. Everyone had a great time, despite losing every game. We had better fortunes in the 2023 Scottish CITMA Quiz with our team winning the first annual quiz since the pandemic.

Our Food & Drink Team have been on the road and spent three days exhibiting at the Food & Drink Expo in Birmingham last month. It was great to see a strong showing from Scottish F&D businesses and to bump into clients, friends and colleagues.

A team of practitioners from our UK and overseas offices will be visiting Singapore this month for the 145th annual INTA Conference, which will take place between 16 to 20 May. I will be joined by some other members of our National Food & Drink Team to meet with clients and contacts from all over the world. Details of the team attending can be found here: INTA 2023, as well as a travel guide that our Singapore team have kindly put together for those attending. Please get in touch if you would like to arrange a meeting.

We are pleased to announce that our Scotland Trade Mark Team maintained its Tier 1 ranking in the latest Managing IP legal directory. The team also maintained its Gold Ranking in WTR1000 2023. A big thank you to all of our clients that provided such wonderful feedback.

We hope you all enjoy the bank holiday weekend and the start of the summer!

As told to:

Jason Chester

Senior Associate

jchester@marks-clerk.com

Q&A with Blair Bowman

Whisky Consultant & Broker

It is always a pleasure to chat with leading whisky expert, Blair Bowman. Blair is an independent whisky consultant, broker, commentator, writer and the founder of World Whisky Day. He is a regional food tourism ambassador for Scotland Food & Drink, one of the Spear’s 500 top recommended whisky advisors, and was awarded Whisky Magazine’s Icons of Whisky, Scotland Communicator of the Year 2022. A key element of Blair’s business is sourcing old, luxury and rare casks and bottles for private clients around the world. Blair has also become a prominent voice within the Scottish drinks industry against the Deposit Return Scheme (DRS) in its current form and has created a community for hundreds of businesses who are concerned about the negative impact of the scheme.

Blair, your passion for making whisky accessible is clear, but what specifically made you fall in love with the tipple?

I fell in love with whisky when I co-founded a whisky society at the University of Aberdeen in my Freshers' Week. I think I really got the 'bug' for it when I learned that all single malt whiskies in Scotland are made from just three ingredients: water, malted barley and yeast.

It blew my mind that all of these whiskies made in Scotland, which all use the same three ingredients and same production process, can end up tasting so distinctly different. From delicate, sweet and fruity whiskies to fiery, smoky and oily whiskies and everything in between. I think this was what piqued my interest and I wanted to learn as much as I could about how they could end up tasting so different. That was in 2008 and I'm still on a learning journey!

You have gone to - what some may call - extreme lengths to ensure that you can always appreciate every aspect of whisky and not lose any of the great taste or smell by living under a self-imposed lockdown, how has this impacted your role as a whisky consultant? Surely one of the most attractive parts of your role, and the best parts of whisky, is being able to enjoy it with friends both old and new?

Yes, I have taken measures to ensure that I do not lose my sense of taste or smell, which is so crucial to my work in the whisky industry. I specialise in sourcing and assessing old and rare casks of whisky for private clients around the world as well as assessing cask samples for distilleries, among other whisky related projects.

While it is true that being able to enjoy whisky with friends both old and new, and traveling to interesting, far-flung locations are some highlights of my job, I believe that my health, as well as the safety of those around me, is paramount. Covid-19 is still very much a global pandemic, and the long-term risks associated with repeated infections, particularly the loss of sense of taste and smell are not yet clear.

As a result, I have chosen to operate on a virtual-only basis. While this may impact my ability to enjoy whisky with others in person, I have found other ways to continue my work as a whisky consultant, such as virtual tastings and consultations over Zoom with clients all over the world. Thankfully this has not impacted my business which has seen enormous growth since the start of the pandemic. Ultimately, my top priority is to keep myself and others safe, while still sharing my knowledge and passion for whisky with the world. It just means that, until then, I have plenty to look forward to in the future when I do return to doing things in-person.

Blair Bowman Q&A (cont'd)

World Whisky Day is taking place this year on the 20th May. Beyond your passion for whisky and making it a shared, enjoyable experience for everyone, what inspired you to establish the day?

As the founder of World Whisky Day, I was actually inspired by World Gin Day and immediately bought the domain name WorldWhiskyDay.com. Despite it being such a beloved and iconic spirit, I noticed that other drinks, such as gin, beer and vodka, had their own dedicated day, and I felt that it was only right that whisky should have one too. I wanted to create a day that celebrated the rich history and diversity of whisky, in an inclusive way which brought together whisky lovers from all over the world to share in their passion for this incredible spirit.

Beyond my personal passion for whisky, I believe that World Whisky Day has become a platform for promoting the industry and showcasing the incredible range of whiskies available from all over the world. It's a day to celebrate, to explore, and to share the joy of whisky with others.

How will you be marking WWD this year?

World Whisky Day is always a very busy day for me, and I look forward to celebrating with whisky lovers from all over the world. Whether through virtual tastings, online events, or other creative ways.

The whisky industry is built on heritage, with many of the distilling techniques handed down from generation to generation as a result many firms have sought to protect their ‘trade distilling secrets’. How important, in your opinion, is it that distillers protect their secrets?

In my experience, the whisky industry is actually quite open and collaborative, and many distilleries are willing to share their knowledge and techniques with others in the industry. While there may be some firms that seek to protect their trade secrets, I believe that there is a strong tradition of sharing information and expertise in the whisky industry.

In fact, many distilleries regularly welcome visitors from other distilleries to share insights and ideas, and there is a strong sense of community and camaraderie among whisky makers. I think this is one of the reasons why the whisky industry has been able to thrive and innovate over the years, and why we continue to see new and exciting whiskies being produced all the time.

Ultimately, I believe that sharing knowledge and expertise is crucial to the continued success of the whisky industry, and that the spirit of collaboration is what makes whisky such a special and unique drink.

Adding to that, branding is a key part of helping whisky brands differentiate themselves, and producers must ensure they have the right trade marks in place to protect their brand. Which brands do you think stand out right now? Have you any favourites?

I have been very impressed by the branding efforts of many of the new distilleries that have emerged in Scotland in recent years. These distilleries have put a great deal of effort into developing unique and distinctive brands, and many have gone as far as creating custom glass bottles to help protect their intellectual property.

Lindores Abbey Distillery and Isle of Raasay Distillery are just a couple of examples of distilleries that have done a fantastic job with their branding and packaging. Of course, there are many other great whisky brands out there as well, and it can be difficult to pick favourites. For me, it's more about the individual whiskies themselves and the unique flavours and characteristics of that specific bottling. Whether it's a classic whisky like a Talisker or a newer offering from a smaller distillery like Nc'Nean, there are always new and exciting whiskies to discover and enjoy.

Blair Bowman Q&A (cont'd)

You’ve recently spoken out about the Scottish Deposit Return Scheme (DRS), and it has been recently announced that it may be blocked by the United Kingdom Internal Market Act (UKIMA). What could the consequences of the DRS be for the Scottish whisky industry, as well as the wider drinks sector?

As someone who is deeply invested in the Scottish drinks industry, I am very concerned about the potential consequences of the proposed Scottish Deposit Return Scheme (DRS). While we all want Scotland to have a successful DRS, the scheme being forced on businesses is completely unworkable and has significant fundamental flaws, UKIMA being just one of several that have not been fully worked out.

If this reckless DRS is forced ahead, the impact could be significant for the whisky industry and the wider drinks sector. I suspect that several whisky brands will opt to stop selling in Scotland and become export-only businesses. The costs involved in becoming compliant are enormous for SMEs and it will put many fantastic smaller breweries and drinks companies out of business. On top of this, only 15% of drinks producers have currently signed up to the flawed DRS, so there is a strong chance that consumer choice will be ruined in Scotland as only registered drinks are allowed to be sold when it goes live.

Given the potential negative consequences of this scheme, I believe that it is important for the government to take a step back and work with businesses to develop a more practical and workable solution that will not harm the industry or consumer choice.

There has been a lot of pressure on many industries to ensure they are meeting sustainability targets.

Do you believe the food and drink industry is doing enough to embrace the shift?

There is always more that can be done, and the whisky industry is no exception. The whisky industry is already taking steps to reach net zero by 2040, which is an ambitious goal. There are many initiatives underway, such as using renewable energy sources, reducing water usage, and implementing sustainable farming practices for the grains used in whisky production. It's important that we continue to focus on sustainability and make it a priority in the industry.

Do you think distillers are embracing innovation enough to help make processes greener?

Many distillers are embracing innovation and investing in new technologies to reduce their environmental impact. For example, some distilleries are using renewable energy sources, such as biomass boilers or solar panels. Others are exploring ways to reuse waste products, such as spent grains or water, in order to reduce their carbon footprint. Additionally, some distillers are experimenting with new techniques throughout the production process in order to reduce their energy consumption. Overall, I believe the whisky industry is taking sustainability seriously and is actively working to make its processes greener, with many now achieving B-Corp status and various sustainability awards.

Now this is a question we like to ask everyone, but given your role, we think this might be a tricky one for you! If you can only choose one dram to enjoy this WWD, what are you having?

I would choose Johnnie Walker Black Label because it is consistently excellent. During my travels before the pandemic, I could always rely on finding a bottle of it in every hotel bar around the world. It gave me a sense of familiarity and comfort, when in a far-flung location and especially when I was unsure about the local beers or wines. I could enjoy it neat, on the rocks, or even in a refreshing highball in hot climates. So if the weather is nice on WWD I'll probably have myself a Johnnie Walker Black Label highball.

To find out more about Blair, please visit www.blairbowman.com

Q&A with Chloe Mullen

Co-Founder of Jorum Studio

Jorum Studio is a relatively new brand. What was your inspiration for establishing the business?

We launched Jorum Studio in 2019 after working with some of the biggest names in fragrance, beauty and beverages.

Our perfumer Euan McCall is the only Scottish Master Perfumer, so his desire to set up the business in Scotland was more to show the world that Scotland also has a world class fragrance offering. Almost every country on the planet has at least one perfume brand and that was lacking here in Scotland.

Furthermore, we have worked on many projects over the years but have also created for our own enjoyment. Over time we started identifying gaps in the current market and how our unique perfum- making sensibilities could fill some of these gaps. It was clear to us that it wasn't really a case of 'should we launch a new perfume brand' and more 'we need to launch Jorum Studio'.

As a start-up, what challenges have you had to overcome to get your business running on all casks?

A lot of our challenges were experienced as a result of Brexit, the Pandemic, and the continued fallout from these macro world events; and thankfully these hit us in quick succession. We rely on a diversified global supply chain and almost every input raw material was negatively impacted due to both Brexit and the Pandemic.

Other challenges are probably the same as almost any start-up: workforce and cashflow. Our product is in really high demand which is great but as the end-to-end manufacturer, we need to have skilled staff and the finances to purchase thousands of raw materials ahead of the physical manufacture.

Beyond this, our product needs to age for a few weeks before it can be bottled and sold, so we need to keep an eye on cash flow so we can navigate supply chains, keep inventory and build in time so as not to run out of cash when inventory is in the crucial 'ageing' stage.

As a Scottish brand, it maybe isn’t surprising that you decided to produce a whisky-inspired fragrance, but what moved you particularly towards the scent of the barrels?

Our in-house perfumer and founder has worked on many whisky-related projects and has always had a fascination with the complex chemistry of whisky, from cereal and processing to distillation and barrel ageing. In whisky-making the conditioning and origin of the barrel is such an important part of the end product.

Most brands focus on the end product when presenting a whisky-inspired perfume, but none focus on the process. Our perfumer had an interesting experience and conversation with a whisky maker some years ago whereby the cellar master prompted him to put his head inside an empty, used barrel - the aroma sparked something.

Jorum Studio Q&A (cont'd)

You create fragrances that aim to tell a story through scent, what story would you say Spiritcask is trying to tell?

Spiritcask is the story of transformation and how surroundings and circumstances can positively impact. A 'new-make' spirit is added to the cask where a transformation begins, the end product is more complex, interesting and arguably better after ageing in the cask. More directly, Spiritcask presents the wearer with a new take on several profiles - it is a new presentation for a whisky-style fragrance, a wood type, a vanilla type and even a leather type perfume.

Spiritcask isn’t the first whisky-related fragrance you’ve produced, what distinguishes it from your previous ventures into the Scotch-scent scene?

We have a few fragrances that more than nod towards Scotch: Arborist is more atmospheric and tells the story of being close to a Distillery (and the malting aromas) observed from the Scottish woodland. Our perfume Carduus is described by many as 'Scotland in a bottle' and has a really smooth, sophisticated dark chocolate, honey and anise character with lots of woods and spices and does a good job at emulating malts. Firewater is from our Scottish Odyssey collection alongside Spiritcask, however Firewater is heavy on smoke and maritime aromas, and is inspired by the corryvreckan whirlpool off the coast of Jura and Islay, so it is thick with peaty aromas and saline tangy citrus.

Spiritcask really is more a story of wood and the unique impact the cask has on spirits. Furthermore, we were somewhat intentionally vague on the spirit in question, as any barrel-aged spirit is transformed when stored and aged in wooden casks.

Smaller, independent breweries have started to appear more over the last few years. Do you think this could be a trend that will follow for the perfume industry in Scotland – might we see more independent perfumeries appear on the market?

Probably. It takes years to train as a perfumer to a competent level and the resources needed for the analytical side of the operation require serious capital expenditure and know-how so as to comply with regulations. So, there is a huge knowledge and investment requirement to operate seriously, that a brewery may not require, with a slower return than a brewery may experience.

Furthermore, beers and spirits are FMCG's (Fast Moving Consumer Goods), while perfumes are luxury products and it's a ruthless global market. You can raise more money quicker if you want to start a brewery and hire in knowledgeable staff and have a strong revenue stream to support hyperlocal and domestic growth.

We started our business with over £250k of our own money and have reinvested nearly £500k in addition over the past 3 years, with our growth moving at a slower pace than many investors may be comfortable with but ultimately, that is what is required.

Time on the market (coupled with continued innovation) is a key and hidden resource requirement when building credibility in the luxury space. Most of our clients have taken 9 years to become scaling operators and our clients represent a cross-section of the industry and across all levels of sophistication.

We were acutely aware that our business would need a decade to mature and another decade to make really significant gains in terms of market and financial return. However, the rewards certainly outweigh the risks – we were profitable in year two and have reported greater returns year-on-year, penetrating new international markets frequently.

Jorum Studio Q&A (cont'd)

So, any future Scottish operator in this space should be aware that the fundamentals are integrity and authenticity, but to do this competitively requires significant capital and perseverance - it isn't as 'easy' as setting up or scaling a brewery with a thirsty demographic - excuse the pun!

Making whisky is an intricate and refined process, unique to every distillery, how much has that inspired the production of your fragrances?

The whisky-making process and the processes at each distillery and blending house are constant inspirations for us. Whisky is made from the same basic raw materials yet the finished product is so much more. There is the impact of terroir, process, equipment, the distillers skill and expression, the virgin new-make and then the cask selection - these all impact the end result. This same attention to detail is echoed in our own operations and systems.

Before we manufacture, every product is created in-house, so we have complete creative control. Our perfumer creates everything in-house, travels to source raw materials and assesses their quality, manufactures the master batches and oversees the maturation, maceration, filtering and bottling. This ensures the quality of every batch of product we make.

Every decision regarding the fragrance and its production is handled by our in-house perfumer with quality being the focus.

And with that in mind – what have you put in place to ensure that the things that make your brand unique are adequately protected?

We are aware that there are little to no protections for any fragrance product, hence why there is a market for duplicates that is growing stronger. Every perfumer knows this.

We protect our product through the quality of our idea, the raw material selection and by not cutting any corners in production.

Our products could be imitated to a certain degree but an imitator could not produce a very accurate copy of our perfumes as they would need to know the source and specifics of our raw materials which is crucial and furthermore, an analysis would often misinterpret complex naturals or the multiple trace levels of intentionally dosed raw materials that we use to help conceal our formulations when under laboratory analysis.

Beyond the technical formulation protections that we deploy, we also have brand protections in place.

And finally, as someone who clearly appreciates their whisky, what is your favourite way to drink it – neat, with water or on the rocks?

That really depends on the whisky!! Most of the time it is neat, some drams seem to open up with a little with dash of water but I have never been that keen on adding ice as I don't like how it continues to dilute in an uncontrolled manner over the drinking experience (and I prefer to savour rather than down it!).

Geographical Indications

The vast majority of us are likely to be familiar with well-known products such as Champagne, Feta and Cornish Clotted Cream, but do you know about “Geographical Indications” (“GIs”) and the legal framework that protects them?

I was recently invited on Sunday with Michael Portillo on GB News to provide some comments on Geographical Indications, and I thought that it might be useful to follow-up with some key introductory points about them.

What are Geographical Indications?

Geographical Indications (“GIs”), otherwise known as “Protected Food Names” (“PFNs”), are a form of intellectual property. They protect the names of specific food, drink and agricultural products that possess certain characteristics derived from a specific geographical region or how they are made.

There are three main types of GIs in the UK – “Protected Designations of Origin” (“PDOs”), “Protected Geographical Indications” (“PGIs”) and “Traditional Specialities Guaranteed” (“TSGs”).

PDOs cover product names which identify a product as originating from a specific place. The quality or characteristic of the product must be essentially or exclusively due to a particular geographical environment, and every part of the production, processing and preparation process must take part in the specific region or country. Examples of PDOs include Gower Salt Mash Lamb, Stilton Blue Cheese and English Wine.

PGIs are much like PDOs. The main distinction between PGIs and PDOs is that only one of the production steps must take place in a specific geographical region for a product to qualify for PGI protection, whereas all of the production steps must take place in a specific geographical region for a product to qualify as a PDO.

Examples of PGIs include Scotch Whisky, Whitstable Oysters, Cornish Pasties, Kentish Ale and Welsh Leeks.

Finally, products that fall within the TSG category are not tied to a specific location but they are made in a specific way using traditional ingredients and/or methods. Examples include Watercress, Traditional Bramley Apple Pie Filling and Traditionally farmed Gloucestershire Old Spots pork.

Why are they important?

GIs can be hugely beneficial for consumers, producers and entire communities. Do you buy eggs because they are stamped with the British Lion Quality mark? Perhaps you buy food and drink products because they contain the Red Tractor Logo? Although these examples are not GIs, they illustrate that our purchasing decisions can be significantly influenced by badges of quality which confirm that food and drink products have been produced to certain standards. GIs serve a similar function. The PDO, PGI and TSG labels provide consumers with a guarantee as to the characteristics, authenticity and origin of a product. This can give consumers access to better quality productions by ensuring that certain standards are consistently met.

GIs also protect producers and entire industries from imitations and inferior products that could damage the reputation and value of a product. For example, Scotch Whisky has developed a strong global reputation and is renowned as being the best whisky in the world as a result of the high standards and specific criteria that distillers must meet in order to call their whisky “Scotch Whisky”. Exports reached £6.2bn in 2022 and the industry employs around 11,000 in Scotland alone - 7,000 of which work in rural areas. Without PGI protection or other pieces of legislation that control how “Scotch Whisky” can be used, the market is likely to be saturated with imitation and inferior products that claim to be Scotch Whisky when they are not.

In principle, genuine Scotch Whisky could be sold side-by-side with a whisky-flavoured spirit of 20% ABV, which has been produced outside of Scotland without any maturation process. This kind of unimaginable end-of-days scenario would be hugely damaging to the reputation and prestige of Scotch Whisky, and would ultimately reduce its desirability and the demand for it.

Geographical Indications (cont'd)

The benefit to entire communities is clear to see. Events, attractions and festivals around GI products can boost tourism, and GIs can help with the redevelopment of rural economies by creating jobs and providing an injection of income. They also help preserve British food and drink traditions, heritage and culture.

How does the Geographical Indication scheme work?

British products were previously protected under the GI scheme operated by the European Union. No agreement was reached for a mutual GI recognition scheme between the UK and EU in the EU–UK Trade and Cooperation Agreement, so a new UK scheme was created on 1 January 2021, at the end of the Brexit transition period. The UK scheme is virtually identical to the EU scheme and is derived from an EU Regulation. The main difference is geographical scope. The EU scheme confers protection in all 27 Member States of the EU and Northern Ireland, whereas the UK scheme provides protection in England, Scotland and Wales. The UK scheme is managed by DEFRA - the Department for Environment, Food and Rural Affairs.

Who can apply for a Geographical Indication?

Generally, a group of producers who all make the same product will apply for a GI. This is typically done through some sort of entity such as a cooperative or an association. The cooperative or association often helps manage the GI to ensure that the standards stipulated by the GI are adhered to. It is possible in limited instances for an individual to apply for a GI if they satisfy certain criteria. It is highly recommended to obtain legal advice and to speak to industry bodies before filing an application for GI protection to ensure that the application is drafted and filed correctly, and has the appropriate backing from relevant stakeholders.

Further Reading:

For anyone that is interested, I strongly recommend that they read the report Untapped Potential: Protected Food and Drink Name Policy in the United Kingdom, published by the All-Party Parliamentary Group (“APPG”) for Geographically Protected Foods in 2022. The report examines the current state of geographical indication policy in the UK and offers 38 recommendations to the Government to make the UK’s GI policy the best that it can be.

Q&A with Iain Baxter

CEO of Scotland Food & Drink

The food and drink industry has gone from strength to strength since Scotland Food & Drink was established in 2007. What do you think has driven this success both domestically and overseas?

It’s been incredibly motivating to see Scotland’s ambitious food and drink industry gaining the recognition that it deserves in recent years. The reputation of Scottish produce as rich in provenance, premium in quality, and choice when it comes to sustainability, has had a huge impact on the industry’s growth, both at home and overseas.

This reputation has laid a strong foundation for Scottish food and drink businesses as global consumer trends towards climate-friendly produce with a story continue to grow. Research from The Knowledge Bank on the impact of provenance shows that, domestically, it’s hugely important. Scottish consumers are 70% more likely to buy food and drink labelled Scottish, with 53% of shoppers willing to pay more to buy products marketed as Scottish.

For many, Scottish produce is synonymous with quality - a perception that is a key driver of the industry’s success, with 66% of consumers considering products with a Scottish label as better quality compared to products from an unspecified region.

Scottish food and drink businesses have also been at the cutting edge of innovation, reaching and even creating new product categories and markets. For example, Glasgow’s Panther M*lk has taken the alcoholic drinks market by storm as the 'world's first' oat milk-based cocktail liqueur brand, tapping into ‘free from’, and pre-mix cocktail trends.

In the meat sector, John Gilmour Butchers is investing in Europe’s largest dry-aging facility, alongside a separate, specialist facility for the production of plant-based products for foodservice. It’s this level of tenacity and innovation that’s driving positive global perceptions (and ultimately commercial benefits) of Scottish food and drink, diversifying away from ‘traditional’ products like smoked salmon and shortbread.

The identity of Scottish food and drink has also boomed globally – top restaurants and renowned chefs are championing everything from Scottish salmon to Scotch whisky. What do you think will be the next Scottish delicacy to take the world by storm?

Scotland is home to an expansive larder of quality food and drink. There’s no denying the positive impact that flagship products like smoked salmon and Scotch whisky have on the industry, particularly in terms of job creation and food tourism.

It is wonderful to see the power of Scottish provenance, the stories and history being told of our food and drink products on menus around the world. The labelling of ingredients as ‘Scottish’ brings a mark of quality, enabling restaurants to charge a premium for menu items we produce.

We’ve seen a real appetite for Scottish porridge oats in recent years, with export figures rising across Middle Eastern markets, aligning with global consumer trends towards minimally processed, natural foods. Innovative brands like Shore Snacks and the Scottish Seaweed Company are making the most of Scotland’s great coastline, harvesting seaweed to create healthy snacks. It looks like there’s a real opportunity for Scotland when it comes to seaweed-based products. These producers could be in a great position to make the most of healthier choice trends, whilst championing the positive impact that seaweed production can have in helping to, naturally, keep marine water clean.

Scotland Food & Drink is on a mission to reduce food and drink waste by a third by 2025. What key initiatives are in place to help you achieve this goal?

Committing to an industry-wide reduction in food and drink waste is vital if we want to maintain our world-leading environmental standards. There is a huge amount of waste in Scotland, with almost 1 million tonnes of food and drink thrown away each year, according to recent figures. UK-wide, food manufacturers throw away around £1.1 billion worth of food every year.

Scotland Food & Drink Q&A (cont'd)

With food waste costing food and drink manufacturing businesses an estimated £1241 per tonne, and with 1kg of food waste generating the same amount of carbon emissions as landfilling 25,000 plastic bottles, it’s more important than ever to reduce it.

Scotland Food & Drink is aligned with the Scottish Government’s goal to reduce food waste by a third by 2025. Achieving this goal will require a concerted effort by consumers and businesses alike. Zero Waste Scotland own the programme to support businesses on food waste, and the Food Waste Reduction Action Plan (FWRAP) provides a framework for us, collectively, to act.

We have been encouraging and supporting businesses to take their processes apart, in order to analyse and understand where waste is happening and how it could be avoided. There are immense benefits to improving waste at production level, both financial and environmental. There are resources to support businesses to reduce food waste, most recently with Zero Waste Scotland’s ‘One Month Food Waste Challenge’ which provides tools for organisations to assess their data, measure their food waste and take action.

One business that saw the commercial opportunity in tackling the food waste problem is The Crafty Pickle Co. The Aberdeen-based start-up uses surplus produce to turn into its fermented and pickled products. Where some businesses see problems, others see solutions, and by working collaboratively, we can tackle the sustainability challenges the sector faces in new and innovative ways.

You provide a unique training program for businesses to enable real and sustainable business growth. Can you tell us a bit more about ‘The Academy’? And what has the feedback been like so far?

The Academy is a unique, market-focused, and commercially-oriented training programme that helps Scottish food and drink businesses at every stage of their growth journey. There is a focus on helping businesses to sell themselves, build their brands and thrive in grocery and foodservice markets. Underpinned by tailored one-to-one mentoring, each programme matches the needs of business with appropriate specialists. We work to ensure that programmes are delivered in a way that minimises disruption to participating businesses' busy schedules, focusing on practical solutions to help professionals to achieve their goals.

The feedback on the programmes so far has been really encouraging.

Arguably the most common piece of feedback that we receive is that the courses help to bring a sense of confidence to participating businesses and professionals, enabling them to plan and make key business decisions that they previously wouldn’t have felt prepared for.

Kim Cameron, Founder of Gin Bothy Ltd. took part in our Seeding Growth course and has since become a real champion of The Academy. She told us:

• “I feel I have grown in confidence and business acumen from attending the course and feel better equipped to plan the next stage of our growth.”
  

With the knowledge and confidence gained through The Academy, Gin Bothy has expanded and has built an export business that has broken into the key US export market.

The pandemic, Brexit, energy costs, climate change and inflation - the food and drink industry continues to work tirelessly to overcome some serious challenges in recent years. What do you think has been key to the food and drink industry building resilience in Scotland?

Nearly all businesses in food and drink, Scotland’s largest manufacturing industry, have been impacted by the huge challenges that rising energy prices and an extremely tight labour market bring. But our sector is characterised by its collaboration, both between businesses and with Government and industry bodies.

For us, it is key to understand the pressure points that impact on resilience and then look for ways to ease that pressure.

Scotland Food & Drink Q&A (cont'd)

During the pandemic, we set up a Support Hub to keep people informed about the ever-changing situation, which was well received by our member businesses and the wider sector.

Government schemes like the Food Processing and Marketing Co-operation (FPMC) have supported food and drink businesses, largely through grant funding, as part of Scotland’s journey towards becoming a ‘Good Food Nation’. Designed to support the food and drink supply chain from field to factory, grants have supported sustainable businesses to help them compete.

We seek to engage constructively around issues affecting the industry and reach out to Scottish and UK Governments to help them understand how businesses are affected and what might help. For example, we are looking to encourage large scale investment in renewable grid energy to enable responsible growth among businesses that will always need to use energy to produce the food and drink we all enjoy.

Unfortunately, there are businesses in our sector for which these challenges have been too great. For many, this has been a time where having a premium product, produced ethically with a strong story to tell, hasn’t been enough to keep a business afloat. It’s worth adding that the challenges of the past year haven’t been felt uniformly across our broad and varied sector. Witnessing businesses like The Ethical Shellfish Company and Gigha Halibut fall victim to these challenges shone a light on how input costs can’t always be recovered through output prices, particularly in certain areas like seafood.

Trading conditions remain tough, but at our industry conference in March, 88% of our attendees said that they were optimistic about their growth.

Given how much the industry has had to evolve in recent years, what opportunities do you think are still available to the industry?

Scotland already has an outstanding reputation across the world, and our food and drink story makes a significant contribution to that. It’s now time to leverage this and take it to the next level. The rest of the UK, and England in particular, holds great potential for Scottish food and drink businesses. With over 60 million consumers, and where location and logistics work in our favour, the rest of the UK is one of our biggest potential growth markets. More than half (54%) of attendees at our industry conference identified the rest of the UK as their biggest growth market opportunity.

The quality of Scottish products, in the eyes of many UK consumers, is unequalled. Our upcoming Industry Strategy includes a keen focus on supporting Scottish businesses tap into this market.

The tenacity and innovation that underpins our food and drink industry makes Scottish businesses particularly capable when it comes to responding to changing circumstances and demands. For example, brands like the award-winning bakery Lazy Day Foods are expertly tapping into the growing ‘free from’ market, by evolving and expanding their product offering as trends develop. Businesses that display strong entrepreneurialism and creativity when it comes to consumer concerns and trends are likely to continue to capitalise on opportunities.

We believe that ambitions towards Net Zero provide a significant market opportunity for Scotland, where the industry is a world-leader in sustainable food and drink practices and production.

Scotland Food & Drink Q&A (cont'd)

Certainly, this will be a long journey, but the resolve and commitment to Net Zero is there across the industry- we will be working to ensure that the right support and advice is provided over the coming years to help businesses on that journey.

And finally, Scotland Food & Drink has a busy programme of events – are any events that you think would be especially relevant for our readers?

Absolutely. Events play a key role in what we do at Scotland Food & Drink.

Many of our events have a specific goal of bringing Scottish producers together with buyers and decision-makers, with a varying regional focus, from local through to export. Our upcoming Sourcing Scotland Regional events, which are new to 2023, are run in partnership with our Regional Food Groups, targeting local and regional opportunities for suppliers around Scotland. The next event is open to buyers, focusing on the Lowlands, and is taking place on 17 April.

With a less regional focus, our Meet the Buyer events bring together key buyers and Scottish producers, with an aim of bringing Scottish produce to more shelves, kitchens, and plates.

We’re looking forward to heading down to London in September with groups of Scottish food and drinks businesses, for our London Learning Journeys & Showcase event. London presents a huge opportunity for Scottish producers, but understanding routes to market, the dynamics, consumer and shopper behaviour and future trends is critical. The groups will meet specialists in retail, foodservice and drinks channels, who have the latest insights and first-hand experience of navigating these markets and maximising returns. A Scottish-themed networking lunch and exhibition at Scotland House will bring together key industry players. This is a new programme for SF&D, offering a unique platform to promote and share our outstanding quality, provenance, welfare, and sustainability credentials to a new audience in the lucrative London market.

And of course, there’s our Excellence Awards, which is back at the EICC this September. The Awards shine a light on the wealth of talented food and drink businesses in Scotland, culminating in a glamorous gala dinner ceremony. Entries for this year’s Awards are now open, closing on 21 April. It isn’t one to miss.

"It depends on the evidence"

Tesco v Lidl

Your branding has been copied, you have a registered trade mark, you ask your lawyers for an assessment of your prospects of success in an infringement action and the answer you get in part is “it depends on the evidence”. This can be a frustrating response but the recent High Court decision in the case between Lidl and Tesco over use of the Clubcard marks by Tesco demonstrates how true this can be.

The case was a hard fought battle between the two supermarkets with survey evidence, claims of trade mark infringement, passing off, copyright infringement and a counterclaim for cancellation of certain trade marks which were alleged to have been filed in bad faith. The hearing lasted 4 days and the judgment given by Mrs Justice Joanna Smith ran to 102 pages.

The court held that the Lidl Mark with Text was infringed under section 10(3) of the Trade Mark Act 1994 by use of the Clubcard Sign. In other words that the Clubcard Sign took unfair advantage of the distinctive character of the Lidl Mark with Text.

Lidl Mark with text

Clubcard Sign

So what did it say about evidence?

Firstly when analysing the case on infringement the court found that the average consumer would find the above marks similar notwithstanding that the word LIDL and CLUBCARD are both distinctive and different. The judge did not consider that the text in the two marks had the effect of extinguishing the strong impression of similarity conveyed by the backgrounds of the marks in the form of the yellow circle sitting in the middle of the blue square. This view of the judge was “fortified” by clear evidence from the internal Tesco team.

This evidence would most likely have come to light during the disclosure part of the proceedings and most likely its existence would not have been known by Lidl when the claim was initially started.

The evidence came from the internal Tesco team whose job it is to understand and consider the likely perceptions of the average consumer. The evidence showed that Tesco had identified the similarity between the Lidl Mark with Text and the Clubcard Sign during the development phase of the Clubcard Sign. This included:

• internal emails from the Head of Marketing Communications stating “When I first saw it, I immediately thought that the lock up looks very similar to the Lidl brand logo. I assuming you guys are conscious of that?”;

• an email detailing concerns of an external consultant who wished to raise some “watch outs” including “Price tiles: The yellow circle inside the blue tile looks a bit like a Lidl ad…”. The internal Tesco campaign manager comments that the external consultant is “right that the colourways are similar to Lidl’s logo”;

• an email from the Brand & Communication Manager who was concerned about misattribution (a common concern with supermarkets where advertising for one supermarket is incorrectly perceived by members of the public as being advertising for another supermarket) and asked if use of the Clubcard Sign was “non-negotiable” and made the point that if so, “[l]ooks like Lidl will be getting some free comms in that case”;

This evidence, together with evidence from two members of the general public and many spontaneous social media comments, led the judge to a finding that the marks previously shown are similar.

The court then went on to consider whether the average consumer would make a connection between the signs such that they think that Tesco products to which the Clubcard sign has been attached are the same price as the same products when sold at Lidl.

Tesco v Lidl (cont'd)

Fundamental to the court making such a finding was the evidence of the spontaneous social media comments which included the following statements:

• “when I see the Tesco advert with all the blue and yellow, all I think of is Lidl”
• (27.9.20 Twitter message);
  

• “The logo looks very similar to lidl’s blue and yellow colours that they have used”
• (11.9.20 message to Tesco);
  

• “I saw an ad on tv for the new clubcard campaign last night and see they are in store too. This is blatant plagiarism of Lidl’s branding”
• (16.9.20 message to Tesco);
  

• “I occasionally pop into Lidls for some European products but when I shop Tesco online I don't need to see lidls logo”
• (1.9.20 message to Tesco);
  

• “Tesco price match with Lidl meaning I can just shop at tesco. The store provides all the food stuffs I like to purchase.";

• “tesco price matches against lidl”
• (25.10.20 Twitter message);
  

• “price match Lidl on most things”
• (6.11.20 Twitter message);
  

• “…But I do like how you try to price match places like Lidl and Aldi two stores which are low on prices.”
• (5.10.20. message to Tesco);
  

• “…Still Tesco is using a ripped off Lidl logo for the club card claiming that customers are getting a good deal if they get the club card.”
• (11.11.20 Message to Tesco);
  

• “lidl price match great discounts for club card members good range of products for size of store good reductions on yellow label items”

(12.1.21 Message to Tesco).

The Wordless Mark

Again the court was persuaded by the evidence. Lidl instructed a survey where members of the public were asked to look at the Wordless Mark and were then asked “what do you think this image is?” 73% of respondents mentioned Lidl. The court held that “the Survey provides strong evidence that the Wordless Mark, used on its own, has acquired the ability to demonstrate exclusive origin; it is perceived by a significant proportion of the relevant class of consumers to indicate the goods and services of Lidl”.

The case is an interesting reminder of the importance of evidence and in this case particularly evidence that the parties most likely were not in possession of when the dispute started but that came out in disclosure during the course to the case. The internal Tesco evidence on the link was no doubt a welcome discovery for the Lidl legal team when the disclosure exercise was completed. This serves as a reminder that evidence can have a significant impact on the outcome of trade mark infringement actions.

Country in focus: Singapore (cont'd)

Appeals

Decisions of the Singapore Registrar of Trade Marks in opposition or revocation proceedings can be appealed in the High Court.

If the party is not satisfied with the decision of the Registrar, they may appeal to the High Court within 28 days from the date of the decision.

The High Court will conduct a full review of the case, which includes hearing new evidence and arguments, and will decide on the appeal based on its own assessment of the case.

It is important to note that the appeal process can be time-consuming and costly, and it is therefore advisable to seek professional legal advice before pursuing an appeal.

Unique Aspects of Singapore Trade Mark Law

One unique aspect of Singapore trade mark law is the use of the "class heading" system. Under this system, a trade mark application may be filed for a class heading instead of a specific list of goods or services. This allows for greater flexibility in the use of the trade mark.

Another unique aspect is the availability of a fast-track option for trade mark applications. This option allows applicants to expedite the examination process for an additional fee.

Additionally, Singapore allows for the registration of non-traditional trade marks such as sound marks, smell marks, and three-dimensional marks. This provides greater scope for trade mark protection.

Conclusion

Overall, Singapore's trade mark law provides a robust framework for the protection of trade marks. The application process is straightforward, and the law provides for both the registration and cancellation of trade marks. The unique aspects of Singapore trade mark law, such as the use of class headings and the registration of non-traditional marks, provide greater flexibility for trade mark owners.

Country in focus: Singapore (cont'd)

High profile cases handled by the Singapore team:

1) Trade mark invalidation and opposition for Vetements Group AG

Acted for VETEMENTS GROUP AG to invalidate and oppose multiple trade mark registrations and applications filed by Vetements Group Limited (VGL) and its related companies, on grounds that the trade marks of Vetements Group AG are well-known in Singapore and that VGL had acted in bad faith in misappropriating the marks belonging to Vetements Group AG.

We successfully invalidated and opposed multiple registration and applications filed by Vetements Group Limited and its related companies in Singapore

2) Defending an opposition against LAC Co. Ltd

Acted for LAC Co. Ltd (the “Applicant”) in defending against an opposition filed by Fair Isaac Corporation (the "Opponent") against the Applicant’s application to register the trade mark “CloudFalcon”. The opposition was filed by the Opponent on the basis that the Applicant’s trade mark wholly incorporates the Opponent’s trade mark.

We successfully defended the opposition filed against the Applicant’s trade mark. Costs of S$12,000 were awarded to the Applicant, and the Applicant’s trade mark was successfully registered in Singapore.

Country in focus: Singapore (cont'd)

Kwok Tat Wai – Senior Associate, Trade Marks, Singapore

Tat Wai holds a LLB (Hons) degree from the University of London, United Kingdom and was admitted in 2013 to the High Court of Malaya as an Advocate and Solicitor.

• Prior to joining Marks & Clerk, Tat Wai was a partner in one of the largest firms in Malaysia with regional presence in all ASEAN countries. He is also a registered trade mark agent in Malaysia.
  

Tat Wai has been practicing in the field of intellectual property for 10 years and currently specialises in the protection and management of trade mark rights in ASEAN and countries worldwide, including trade mark prosecution and registration, providing advice on trade mark protection and branding strategies, and advising regularly on the enforcement of trade mark rights.

He has advised and assisted clients in various industries including companies in the pharmaceutical, manufacturing, consumer goods, food and beverage, liquor, automobile, entertainment and fashion industries.

Inspiring women

The woman who has inspired me most in life is (probably as with most other people), my mother. However, she wouldn’t want me to publicise our private family life or to make a fuss. So, rather than write about my mother (even though she is fantastic), I will write about Elizabeth Zott, a fictional character from the book “Lessons in Chemistry” by Bonnie Garmus.

Elizabeth is a chemist at a time when it’s not easy to be a woman chemist. Unfortunately, Elizabeth is also an attractive woman, making her life in science and generally in the 1960s even more difficult. She experiences trauma at the hands of her male superiors, and has to settle for work as the host of a cookery programme, which she uses to educate housewives on scientific topics related in some way to the ingredients she uses, or the cooking process.

Elizabeth eventually gets some of the recognition she deserves for the research she had carried out and is able to run her own research group in peace, being allowed to just get on with and publish her research, which is all she ever wanted.

Elizabeth’s practical approach to the problems she is made to face is inspirational. I don’t think you need to be a woman chemist to appreciate the brilliance of Elizabeth Zott, but the connection probably helped me immerse myself in her story.

If you haven’t read “Lessons in Chemistry”, then I recommend you give it a go. It is being made into an Apple TV+ drama so if reading is not your thing then you will be able to watch a version of the book in the near future.

Author

Kate Appleby

Trainee Patent Attorney

kappleby@marks-clerk.com

Meet the Team

What are your areas of expertise?

I work within the Marketing and Business Development team across the Scottish offices, helping our teams with all their marketing and business development needs.

My role is to help build relationships and to work on initiatives relating to all areas of the marketing and BD mix for our sector groups or for firm-wide projects.

What are your career highlights to date?

I enjoy implementing ideas and bringing marketing or event concepts to fruition. It’s a rewarding feeling, when you see ideas become a reality and they contribute to the wider business objectives.

What is your favourite dish?

A classic rib-eye steak with a dash of peppercorn sauce, served with a side of chips and truffle mac and cheese.

What is your signature meal to cook at home?

My speciality is phoning my local Chinese, and then plating the food up, so I can pass it off as my own. On the odd occasion that it happens to be shut, I can muster up a decent creamy chicken and chorizo pasta.

What is your top tipple?

I’ve never met a Gin I didn’t like. I am currently working my way through the long list of Gins I haven’t heard of, that I carefully select based on their packaging!

What are your favourite restaurants?

I am a frequent visitor to the Golden Arches (McDonalds) and just like Coldplay's popular song, its lights always guide me home and it does indeed fix me.

Other favourites include: El Cartel and Chaophraya in Edinburgh.

Who are your dream dinner guests?

Oprah (in hopes she would bring me a car or any other gift), Stevie Nicks (as Fleetwood Mac are my favourite band) and Adam and Eve (to get the real story, whoever they may be).

What is the most adventurous food/drink you’ve ever tried?

Haggis, and despite living in Scotland, it’s a no from me.

Do you have any hobbies?

Is Netflix a hobby? If not, my hobby is trying to find a hobby.

Tell us about a woman that has inspired you

I would be doing my grandmother a great disservice if I didn’t say she has inspired me throughout my life. Having raised her own kids, she then through circumstances went on to raise myself and my brother, alongside my grandfather.

As cliché as it sounds, I really wouldn’t be where I am today without her and the tenacity, strength and fearlessness that she demonstrates are qualities I have always inspired to inherit.

Apologies to my grandmother, as the real answer is Kris Jenner, because she has the unique ability to market anything and anyone and make it a success.