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Court of Session ruling rejects Tomatin Distillery name fears

By Calum MacLeod

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The entrance to Tomatin distillery..
The entrance to Tomatin distillery..

An award-winning distillery's bid to block a nearby retail development from using the same name has been rejected by Court of Session judge, Lady Wolffe.

Tomatin Distillery raised the action against The Tomatin Trading Company, which has already received planning permission for a hotel, restaurant, shops and petrol station on vacant land just off the A9 and less than 400 metres from the distillery.

The distillery owners, who produce Tomatin malt and have used the name of the village in their branding since 1963, said they had no objection to the development itself, but raised concerns that use of the name Tomatin could be potentially confusing to visitors and amounted to an infringement of its trademarks.

The online hearing earlier this year heard concerns that this could lead to visitors mistaking the new development for Tomatin Distillery's own visitor centre, resulting in a potential loss of income.

Defending its case, The Tomatin Trading Company – which led by sole director William Frame of Braemore Estates – said the use of Tomatin was descriptive of the geographical origin of the goods or services being provided and there was no infringement of the trademarks registered by the distillery.

Tomatin Trading Company director William Frame.
Tomatin Trading Company director William Frame.

Lady Wolffe concluded that the distillery had failed in all its claims for infringement.

In her 235-page report she ruled that there was little risk of confusion and that whisky consumers would appreciate that Tomatin Trading's sign is used in relation to different goods and services than those offered by the distillery.

She also rejected the suggestion that visitors would be confused between new development and the distillery and its visitor centre

"The signage visible from the A9 indicates the existence of the distillery and visitor centre, and the sign at the t-junction onto the old A9 clearly identifies in their own right both the distillery and the visitor centre," she wrote.

"In the event that the dualling of the A9 takes place by the time the development is open for trading, then the

visitor coming off the A9 will pass the development first. Even if the visitor intending to visit the distillery inadvertently turns into the development (on the present configuration of the roads), it will be patent in a very short space of time that the wrong destination has been reached.

"In respect of the use of the words the 'Tomatin Trading Company' the average consumer would understand 'Tomatin' as the origin of the goods and services, as being that of the defender at its development based in or near the village of Tomatin."

Lady Wolffe has not made any ruling on expenses in the case.

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