Is Dutch Genquila a type of Tequila? Is there a strong evocation between both?
To answer this, this commentary analyzes a decision made on 6th March 2024, concerning the European Union Intellectual Property (EUIPO) case of R 1033/2023-2 Dutch Genquila/Tequila (https://www.euipo.europa.eu/en/protect-ip/law/recent-case-law/dutch-genquila-applied-for-wines-evokes-the-gi-tequila) involving the contentious issue of geographical indication and evocation in the context of trademark law. In essence, the dispute revolves around the trademark application for “DUTCH GENQUILA” concerning wine and spirit drink and its potential association with the protected geographical indication (PGI) “TEQUILA”.
What is Dutch Genquila?
Before we begin, it is crucial to find out what precisely constitutes “Dutch Genquila” and how it distinguishes itself from Tequila. According to information from a web search, “Dutch Genquila” is described as an authentic Dutch beverage crafted from high-quality Dutch genever, rather than pure grain alcohol. It undergoes a meticulous blending process involving natural agave extract, sugars, herbs, and other ingredients, resulting in a unique libation that stands apart from traditional genever or Tequila. The exact quote read as follows:
“an authentic Dutch drink with a base of high-quality Dutch genever (a gin without herb), rather than just pure grain alcohol. After many rounds of mixing with natural agave extract, sugars, herbs, etc., we created an entirely new drink. It’s not genever or tequila, but a one-of-a-kind Genquila! A purely natural Dutch product which is the opposite of Mexican Tequila.” (quote extracted from https://www.dutchgenquila.nl/)
The Similarity Between Dutch Genquila and Tequila
It’s noteworthy to underscore that Tequila is traditionally derived from distilling the juices extracted from the heart of the blue agave, which may be complemented by other sugars.
If one examines the production processes, parallels between Dutch Genquila and Tequila become apparent, both utilizing agave extract distilled with other sugars.
The Dissimilarity Between Dutch Genquila and Tequila
However, Dutch Genquila introduces an additional element, that is the infusion of Dutch Genever into Tequila, thereby transforming into the unique beverage known as “Dutch Genquila”.
The Evocation of Tequila
In this regard, the EUIPO Boards of Appeal (BoA) emphasize that evocation may occur even without significant phonetic or visual similarities between signs. In addition, they stress the importance of considering ‘conceptual proximity’ between terms from different languages, which can trigger associations in consumers’ minds with protected geographical indications.
The BoA notes similarities between the contested mark ‘DUTCH GENQUILA’ and the protected geographical indication ‘TEQUILA’, particularly the shared ending ‘QUILA’, reinforcing the association with the protected geographical indication. Despite the adjective ‘DUTCH’ potentially signaling the origin of the goods as Dutch, the BoA highlights that evocation can still occur, even if the true origin is indicated.
Furthermore, the EUIPO BoA finds that the relevant EU consumer is likely to establish a clear and direct link between the contested sign applied for wine and the spirit drink protected by the PGI ‘TEQUILA’, constituting an evocation within the meaning of Article 21(2)(b) of Regulation (EU) No 2019/787 which read as follows:
“Geographical indications protected under this Regulation shall be protected against any misuse, imitation or evocation, even if the true origin of the products or services is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar, including when those products are used as an ingredient;”
Commentary
While there are mixed responses and criticisms regarding this decision made by the BoA, if “Dutch Genquila” is indeed allowed to be registered as a trademark against the protected geographical indication of “Tequila,” what could possibly happen is that other liquor traders may introduce creative products of concocted alcoholic beverages, such as “Italy Verquila” for mixing Vermouth with Tequila, or “Vodquila” for combining Vodka and Tequila. Surely, if these products were indeed to apply for trademark, the protection offered to the protected geographical indication of “Tequila” could be diluted and rendered redundant in the long run. This perhaps is not what was intended by the EUIPO.
Conclusion
In conclusion, the case of “DUTCH GENQUILA” versus “TEQUILA” underscores the task of striking a balance between innovation and tradition within the framework of intellectual property law. We can safely conclude that the protection against evocation offered under Article 21(2)(b) of Regulation (EU) No 2019/787 is rather secure and conservative to avoid any chance of confusion by the public at large and and to guard against misuse by traders of the like.
Read more on other articles: https://strattonquest.com/2024/05/07/how-to-register-for-copyright-in-malaysia-without-hassle/