A trademark tasting session to celebrate World Gin Day

By Vanessa Harrow,

This year's World Gin Day falls on Saturday 13 June with virtual events planned around the world. Vanessa Harrow explores the IP that accompanies our favourite tipple.

Gin has enjoyed a long, but not always distinguished history. From its roots in herbal medicine during the Middle Ages to the current ‘ginaissance’, the drink provided ‘Dutch courage’ for English soldiers in the 16th century, prompted a ‘Gin Craze’ in the 18th century, survived as ‘bathtub gins’ and ‘mother’s ruin’ during the Prohibition era and, of course, helped to mask anti-malarial quinine compounds in tropical colonies, from which we get the ‘gin and tonic’.

According to data from Kantar, gin is officially the UK’s favourite spirit (having overtaken whisky) with over a quarter of the population purchasing gin (including flavoured/gin liqueurs) in the last 12 months, up from just over 10% four years ago. It has also sparked the creation of a number of alcohol-free gin alternatives, such as premium non-alcoholic spirit brand Seedlip. Beer and wine brands are also starting to enter the market, such as the recent launch of Brewdog’s Lone Wolf and Echo Falls’ Summer Berries Gin.

Qualifying as 'gin' 

In the EU, there are four official categories of gin (five including sloe gin):

  • Juniper-flavoured spirit drinks – can be sold under the names Wacholder or Genebra (umbrella terms which are nods to their historically regional terms) and are produced by pot distilling a fermented grain mash and then redistilling with botanicals (including juniper) to extract the aromatic compounds. The finished product must be bottled at a minimum of 30% ABV.
  • Gin – a juniper-flavoured spirit made by adding natural flavouring substances to a base neutral gin spirit. The predominant flavour must be juniper and a small amount of sweetening can be added after distillation. Minimum strength must be 37.5% ABV. (This category also includes ‘Pink Gin’, where it meets the requirements for content and strength.)
  • Distilled gin – produced exclusively by redistilling ethanol of agricultural origin to a initial strength of 96% ABV and adding juniper berries and other natural botanicals in the still. Again, the predominant flavour must be juniper and it must have a minimum strength of 37.5% ABV.
  • London gin – produced using the same distilling process as distilled gin (although with a higher quality ethyl alcohol), the differentiating factor is that natural flavours can be added at the re-distillation stage and no sweetening is permitted. In addition, London gin cannot be coloured. The minimum strength must be 37.5% ABV, and ‘London gin’ maybe supplemented by the term ‘dry’.
  • Sloe gin – a liqueur, rather than a spirit, sloe gin is produced by mashing sloes in gin (with or without the addition of sloe juice). The minimum alcohol content is 25%, and the product can be marketed with the term ‘liqueur’.

IP considerations 

There is a wide range of branding issues around gin products and distilleries, from trademarks and design registrations, trade secrets, labelling requirements and licensing considerations.

Trademarks 

Clearance searches should be undertaken for a new brand prior to launch to ensure that there are no other brands using the same or a confusingly similar name. Searches should be undertaken not only for gin: there be issues if another spirit or alcoholic drink producer is using a similar brand (Class 33), and also if a no and low alcohol alternative is seeking to enter the market (Class 32). Such searches are also advisable if you are looking to expand an existing brand into the gin market or into a new geographical territory.

Trademark registrations to protect the brand should, of course, be considered for all key territories of use. This is not only important in those markets in which the brand is sold, but potential future markets and those in which fakes or counterfeits can be an issue. 

Keep in mind:

  • Descriptiveness: if your proposed brand describes anything about the product, or where it is produced, there is the potential for an objection to be raised at trademark offices. Such marks are often attractive to brand owners as they immediately tell customers something about the product, for example, where it comes from, what it tastes like. However, the strongest trademark protection will come from marks that have no descriptive connection to the products. A unique mark will not only be registerable, but less likely to infringe the rights of third parties.
  • Translations: while in your home territory a foreign name may be acceptable and distinctive, the mark will be translated by the relevant trademark office and, if it the mark appears to be descriptive or be identical to an existing right, this will cause issues.

Designs and copyright 

With the increase in popularity of gin, so has the competition to stand out on a shelf. Traditionally, the standard colour for a gin bottle was green. The growth of ‘premium’ gins has sparked a plethora of different bottle designs, from unusual shapes to striking illustrations (there is an entire Pinterest account dedicated to them here). Even if the traditional green is kept, bottle design has become more and more creative.

If the bottle design is unusual, consideration should be given to registering the design as a UK and/or EU registered design.

Businesses should consider also who owns the copyright for any design work and ensure this is kept aligned with the brand ownership. (In some territories, copyright can also be registered.)

Trade secrets 

Recipes for new gin products are unlikely to obtain patent protection as there is no significant new or inventive step being used, especially with the strict regulations on the distilling of spirits, including gin.

Trade secrets would therefore seem the most appropriate method by which to protect a recipe, much in the same way as Coca-Cola and KFC protect their recipes. Under a trade secret, specific information on the recipe should remain confidential and only be given to those recipients who are aware of the specific obligations of confidentiality.

Social media 

Social media platforms are a fantastic marketing tool for brand development and recognition, interacting with customers, generating sales and generally raising the profile of the brand. However, as with all internet platforms, they need to be constantly reviewed and monitored to ensure that the brand is being exposed in the way intended, while also encouraging sharing and interaction. (Find out more about Online Brand Protection).

In addition, brands should bear in mind regulatory issues and responsible drinking.

Have a G&T on World Gin Day!

Make your G&T an extra bit special to celebrate the occasion:

  • Gin: Choose your favourite tipple (or non-alcoholic equivalent), or find advice and inspiration online.
  • Tonic: Good quality tonic is key, so use a premium tonic such as Fever-Tree or 1724. The tonic should also be very carbonated, so small bottles are ideal.
  • Measure: This can vary from brand to brand depending on the strength, but the rule of thumb is one part gin to two parts tonic.
  • Glass: Traditionally served in a highball glass with lots of ice, the current trend is for a wide balloon glass to expand the surface area and allow more bubbles to the surface, allowing more appreciation for the aromas.
  • Ice: And plenty of it.
  • Garnishes: Gone are the days of simply adding a lemon slice to your Gordon’s and Britvic. Match your garnish to the specific or highlighted botanicals in the gin. Add cucumber to Hendrick’s, basil to Gin Mare, pink grapefruit peel and a couple of blueberries to Brockmans, apple to Caorunn and a slice of grapefruit to Tanqueray 10.

Vanessa Harrow is a UK Chartered Trademark Attorney and Head of Trademarks at Novagraaf in the UK.

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