A glen by any other name: American whiskey brand survives legal challenge over name from Scotch Whisky Association.

While you can’t take the Scotch out of Scotland, a distillery in North Dakota in the US has battled to show that you can share the glen with Glenlivet.

Proof Artisan Distillers last month finished a more than two-year process to trademark its Glen Fargo American Malt Whiskey, a homegrown spirit named for both the state’s largest city and the valley where it sits.

The final test was convincing the association that represents Scottish distillers that the brand meant no offense to single malt makers across the Atlantic with its name choice.

“I’m not a product expert,” said Joel Kath, owner of the downtown Fargo distillery, “but I’ve learned a lot more since starting this.”

Single malt whisky is more closely associated with Scotland because very few North American distilleries made it in the years following prohibition, with most Americans and Canadians deciding to instead make bourbon and ryes.

But some North Americans have entered the single malt whiskey market through numerous craft distilleries that have bloomed in recent years.

The definition of “single malt” states that the whisky (or whiskey in this case) can only be made in one distillery and must only be produced using malted barley.

Glen Fargo is made from barley grown in North Dakota, which leads the nation in production of the crop.

Picture: AP

A week before the trademark deadline, the Scotch Whisky Association filed a protest with the U.S Patent and Trademark Office, saying Glen Fargo would be confusing to consumers who may believe it is a Scottish product.

The use of the world ‘glen’ is popular in Scotland’s whisky industry with many of its distilleries taking their names from the valley – or glen – where they reside.

Kath said Glen Fargo is an accurate definition of the area in eastern North Dakota.

“Glen is a glacially formed valley. Fargo is at the heart and center of what is arguably the largest glacially formed valley in the world.

“The Red River Valley is at the bottom of Lake Agassiz.”

Kath’s attorneys also argued that Fargo itself has no geographical reference in Scotland.

The Scotch Whisky Association eventually dropped their complaint, with the caveat that the label must read as the five-word Glen Fargo American Malt Whiskey.

Rosemary Gallagher,  head of communications at the Scotch Whisky Association said: “The Scotch Whisky Association’s consistently held position is that consumers are likely to associate the word ‘Glen’ with Scotland and Scotch Whisky if it is used on whisky, for which Scotland has a pre-eminent worldwide reputation.

“In this situation, we reached an agreement with Proof Artisan Distillers which was initially looking to register the mark ‘Glen Fargo’ for use on a wide range of goods.

“Proof Artisan Distillers agreed to withdraw the application to register ‘Glen Fargo’ and a new application was filed for the mark ‘Glen Fargo American Malt Whiskey’. The applicant agreed to only use the mark on either Scotch Whisky (or a Scotch Whisky-based liqueur) or a whisky produced in the US and labelled in a way that clearly identified the product’s origin. The applicant also agreed that if ‘Glen Fargo’ was used in any market on a Scotch Whisky it could not be used on a US whiskey.”

“We are satisfied that this agreement and the subsequent labelling avoids any consumer confusion around the origin of the product.”

The fledgling Proof distillery has won taste tests before with its gins and vodkas, but making a single malt American whiskey has been Kath’s pet project since the facility opened two years ago.

Local drinks store managers say customers appear to like the taste of Glen Fargo, described as having hints of malt and oak and subtle notes of caramel and vanilla.

Dustin Mitzel, CEO of Happy Harry’s Bottle Shops, says customers call it a balanced, not-too-heavy whiskey.

“I think people also like that it’s a local product. It’s local guys with a bottle of whiskey that says Glen Fargo on it, and that is pretty unique.”

It’s not the first time that the SWA have been forced to go to court protect the Scotch whisky brand from what they perceived were threats to their trademarks, they filed an appeal in 2007 with the Federal Court of Canada over Nova Scotia distillery Glenora using the term “Glen” on its Glen Breton Rare brand, claiming it was an incorrect description which was likely to fool consumers into thinking the ten-year-old was actually from Scotland.

 

About The Author

Sean Murphy

Driven by a passion for all things drinks-related, Sean writes for The Scotsman extensively on the subject. He can also sometimes be found behind the bar at the world famous Potstill bar in Glasgow where he continues to enhance his whisky knowledge built up over 10 years advising customers from all over the world on the wonders of our national drink. Recently, his first book was published. Dubbed Gin Galore, it explores Scotland's best gins and the stories behind those that make them.

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