A developer behind plans for a £12 million visitor attraction near Inverness has hailed a victory in its long running battle with a distillery over who can use the name of the village where they are both based.
The Tomatin Trading Company said it now plans to go ahead to secure the necessary financing for the development which is set to include a 99-bedroom hotel, a 200 seat restaurant, farm shop and filing station the Tomatin junction on the A9.
The plans come as the Tomatin Distillery Company based nearby the proposed scheme failed in an appeal contending that the planned development infringed its trade marks.
The distillery, owned by Japanese drinks conglomerate Takara Shuzo, had raised the intellectual property action against the Tomatin Trading Company at the Court of Session in Edinburgh.
The drinks firm was fighting to overturn a decision made last year by Lady Wolffe who had said that in her opinion the public would not make a link between signs used by the two parties to the action.
Following her ruling, the distillery firm raised a legal challenge to the decision for three appeal judges at the Court of Session.
What’s in the name of Tomatin?
The dispute began when the distillery made moves to defend its word trade mark for ‘Tomatin’ registered in 1963 covering Scotch whisky and which was later successfully applied to extend that trade mark to other services in 2018.
Tomatin Trading sought to register its own mark the following year after it secured planning permission for a hotel, cafe, filling station and retail outlet development.
In the latest decision, Lord Woolman, who heard the appeal with the Lord President Lord Carloway and Lord Pentland, said Lady Wolffe was entitled to conclude that the distillery had not made out a case of infringement in the circumstances of the action.
The judge said: “A registered trade mark is not infringed by the use of a sign which concerns geographical origin ‘provided the use is in accordance with honest practices in industrial or commercial matters’.”
“Trade mark owners have a duty to act fairly.
“There is no warrant for the distillery to have a monopoly on the use of ‘Tomatin’ for non-whisky classes,” said Lord Woolman.
The site, which previously housed a hotel, and latterly a café and filling station, has lain unused for well over a decade.
William Frame, the businessman behind the development, acquired the site in 2005 when it housed a Little Chef and petrol station.
Long-running dispute ‘absolutely unnecessary’
In a statement his company said: “This whole legal action, brought by Tomatin Distillery, was absolutely unnecessary from day one, especially as The Tomatin Trading Company had tried to find reasonable compromise.
“It has been an extremely long and hard three years that this has hung over William Frame and his family, causing unnecessary stress, anxiety, cost and uncertainty.
“The case has been fought without the reserves of a large company, but in this case the Tomatin Trading Company thinks that it can finally say that integrity has ultimately won, and that David has defeated Goliath!
“We look forward to putting this case firmly behind us, and can now finish off our financial structuring with real confidence, getting down to the very important business of actually starting – and delivering – this important new development for the Tomatin – and wider Highlands – areas.
“William wishes to thank all those who have supported him in this difficult journey, which has had many dark moments.”
Distellery’s response
A spokeswoman for Tomatin Distillery said: “Whilst we are disappointed that Lord Woolman has upheld the original ruling regarding trademark infringement, we are delighted that the judgement regarding our trademark registrations has been overturned.
“We are pleased to now be able to draw a line under the matter and, as ever, remain committed to creating a thriving community here in Tomatin.”
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