president and master distiller, Peter Hunt. The stated topic was
the “Blue Gin Mark Owned by Victoria Distillers,” and it asks
competitors to stop making future batches of blue gin. So-called
common law trademark symbols accompany the terms “Blue
Coloured GinTM” and “Empress 1908TM.” Once officially registered,
trademarks can be accompanied by the “ R ” registered trademark
symbol. A search of the Canadian Trademarks Database reveals
that Victoria Distillers filed for trademark protection of those
terms in March.
“You are correct that Victoria Distillers submitted a trademark
for blue gin, however, I don’t have any immediate comment on this,”
Hunt said by email in late June.
Internationally, some blue gins derive their tint from other
botanicals and are not colour changing: Greenall’s Blueberry Gin
and Lubuski Blue Gin get their colouring from berries; London
No. 1 has gotten its baby blue hue from gardenia flowers or blue
spirulina, the latter of which can also have some colour-changing
properties with a change in pH. However, Canadian-made blue gin
is essentially synonymous with butterfly pea flower infused spirits.
The attempt to trademark blue gin is newly possible with
changes to the Canadian Trademarks Act in June 2019, says
George Kondor, an intellectual property lawyer and partner at
Oyen Wiggs Green & Mutala LLP in Vancouver. (Kondor is also
involved in the start-up of B.C. artisan distillery, Jensen Spirits.)
To register a colour, in and of itself, as a trademark in Canada, he
says the colours must be “inherently distinctive,” defined by the Act
as “when nothing about it refers the consumer to a multitude of
sources.” For instance, the colour black, when used for tires, would
not be inherently distinctive.
As this is a new area of trademark law, there is no precedent yet,
and many applications for colour-related Canadian trademarks
are pending in a process that can take 18 months to two years.
Spirits trademark applications are also trending in places like the
U.K., where they increased 84 per cent between 2013 and 2018 –
along with the rise of flavoured gins and small-batch producers.
“The government will not grant anyone a monopoly on the use of
a non-distinctive word,” Kondor said in a written opinion provided
in early July. “I think that the Victoria Distillers’ application will,
for this reason, face insurmountable ‘not inherently distinctive’
objections once it gets examined.” The trademark process also
gives the public an opportunity to oppose applications. Ironically,
Hunt’s letter alerted competitors who say they previously had no
knowledge of Victoria Distillers’ application.
In Canada, more than a dozen small-batch distillers could
potentially be affected; some have already expressed their intent
to oppose the Victoria Distillers application. Indigo gin makers
include Compass Distillers in Nova Scotia (which announced its
legal intent to oppose the application in an early July media release);
Stadaconé Distillery and Absintherie des Cantons in Quebec;
Polonée Distillery and H2 Craft Spirits in Ontario; Troubled Monk
in Alberta; Nanaimo Distillery, Wynndel Distilleries, Yaletown
Distilling and Okanagan Spirits in B.C.; as well as Patent 5 in
Manitoba. Interestingly, some of these brands also have pending
trademark applications for these products, including Okanagan
Spirits (for the bottle design of its “farm-to-flask colour-changing
gin,” Evolve), Patent 5 (for “violet gin,” stipulating a certain Pantone
purple shade) and Blue Ocean Gin (the name of the custom
spirit created at Yaletown Distilling for KPMG, which applied for
the trademark).
Alex Hamer, founder of Artisan Distillers Canada and the
Canadian Artisan Spirit Competition (CASC), calls Empress 1908
“arguably the most successful gin from a smaller distiller in Canada
in many years,” but says “this doesn’t seem like a great way to
continue to build that brand and success. If nothing else ... this
action has called attention to the other, great, blue- and purple-tinted
gins made by artisan distillers across the country. My hope
is that this is the extent of the impact of this letter.”
At Royal Gin makers Compass Distillers in Halifax, co-owner
Graham Collins says the colour-changing tint has been “well known
as a bartender’s trick for eons,” pointing to a 2016 New York Times
article on the trend.
“It’s not like Victoria Distillers invented it. We’re a bit appalled
that it might be possible to legally protect the colour of a spirit,”
said Collins.
F E AT U R E
Photo courtesy of Artisan Distillers Canada
Blue Gin from Compass Distillers
(2020 CASC entry) and Victoria
Distillers (2019 CASC entry)
26 § POURED CANADA § www.poured.ca
/www.poured.ca
