Whisky From a German Glen? The EU Won’t Drink to That

Posted June 8, 2018 5:22 p.m. EDT

To many whisky connoisseurs, a bottle of Glenfiddich or Glenmorangie evokes the moody Scottish countryside, with images of rolling hills and glens, or valleys.

What about a bottle of Glen Buchenbach, which is made in southwest Germany?

The European Court of Justice said Thursday that a German distiller’s use of the term “glen” could mislead or confuse customers about the origins of its beverage, potentially suggesting it was a product of Scotland. The ruling by the European Union’s highest court left the final decision to judges in the German city of Hamburg.

Europe has been here before. The region strictly polices what food can be called and what ingredients can go into certain well-known dishes. EU officials even provoked anger when they tried to tell Belgians how to cook frites, a local variation of French fries that have been made in the country for generations.

Countries in Europe zealously guard their gastronomic heritage, and the European Union itself maintains a list of “protected” dishes and drinks from various parts of the region. Even the use of generic terms like milk and cream is regulated.

As a result, cases like the battle over the use of the word “glen” are far from unusual.

— Cheesy Rulings

Europe is particularly protective of its cheeses.

In 2008, the European Court of Justice decided that even in translation, “Parmesan” was so evocative of the hard cheese, known in Italy as Parmigiano-Reggiano, that it would not allow cheese made elsewhere to be labeled Parmesan.

That is not the only such example. In Europe, “feta” can be used only to refer to the crumbly Greek product. As a result, cheese makers in northern England that offer a feta alternative have to market it as “fettle.”

The consequences of such decisions extend beyond Europe.

China agreed last year to respect Europe’s food protection rules (including for feta). The regulations have, however, led to some bitterness during trade talks between the European Union and United States. House Speaker Paul Ryan, a Wisconsinite, insisted on his state’s right to make feta, prompting a Greek lawmaker to bemoan the “risk of mass imports of counterfeit feta into the EU.”

— Irregular Ingredients

The region’s highest court has also had to wade into the sticky issue of recipes, and how companies are allowed to label their products.

Last year, the European Court of Justice decided that labels such as “milk,” “butter” and “cheese” must have ingredients derived from animal products. That means a German company that sells dairy alternatives like “Soyatoo tofu butter” should not use the term “butter” while marketing its wares.

And in 2003, the court ended the so-called chocolate wars by deciding which products were worthy of being called chocolate. Officials in Spain and Italy had forced countries like Britain and Denmark to relabel their items as “chocolate substitutes” because they included vegetable fats other than cocoa butter. But the court eventually decided that this was an impediment to the free movement of goods.

Drinks and desserts are included in the regulations, too. In December, the European Court of Justice ruled that a German discounter was allowed to sell its “Champagner Sorbet” against the wishes of Champagne producers, who have been fiercely protective of their luxury brand — but only if the retailer could prove that Champagne was a distinct part of the flavor.

— A Tall Order

In the case of Glen Buchenbach, the ruling focused more on how liberally companies can use words in their marketing than on how the product is made.

Scotch whisky is protected under rules on geographic identifiers, which require that the term can be used only for whisky made in Scotland that fulfills specific production criteria, like being matured for three years and having flavorings or sweeteners. The term “glen,” a Gaelic word that means “narrow valley,” is not specifically included in that protection.

Still, the Scotch Whisky Association has been vigilant in trying to protect its brand and reputation, and so took the maker of Glen Buchenbach, a small German distiller called Waldhornbrennerei, to court. It argued that by using the term “glen,” the German company had infringed on the protected status of Scotch whisky.

Consumers could be misled by the use of “glen” into thinking that the spirit came from Scotland, rather than southwest Germany, it argued.

Jürgen Klotz, whose family owns and runs the German distillery, said that the name was a pun on Berglen, the town where the distiller is based. Buchenbach is the local river near that town.

“If you have a look around our landscape in Berglen, there are a lot of glens,” Klotz said.

The onus now shifts to a court in Hamburg, where the Scotch Whisky Association must prove its case.

It faces a tall order, lawyers said.

“The consumer would immediately have to have the image of the Scotch whisky in its mind,” said Anthonia Ghalamkarizadeh, a specialist in intellectual property in Hamburg for the law firm Hogan Lovells, “without any detours or thought process.”