Tomatin development name is 'nothing to worry about', court hears
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A legal challenge over the name of a proposed £12 million retail development just off the A9 was premature until full details are known, a Court of Session hearing was told today.
Usman Tariq, representing the proposed Tomatin Trading Company (TTC) development, also questioned why Tomatin Distillery had only sought to trademark aspects of the Tomatin name just days after a newspaper report on the hotel, restaurant and retail complex. This is planned for a site on the outskirts of the village, previously occupied by a hotel and restaurant.
Although the distillery owners have said they have no objection to the proposal, they have lodged an action over the use of the village name in the development, arguing that Tomatin is "inherently associated" with its brands and taking advantage of its established reputation.
Concerns were also raised that the name of the development could cause confusion with Tomatin Distillery's own visitor centre.
Summing up his case, Mr Tariq told presiding judge Lady Wolffe that these concerns were premature.
"The development has not been built at this time," he stated.
"The court does not know how Tomatin Trading Company will be used in relation to goods and services. There was little recognition by the pursuer that the hotel will probably be known as the Holiday Inn, that the restaurant will probably be called the Findhorn and the filling station will probably be called Total. We don't know what the retail units will be called."
He continued: "What is readily apparent is that there is no real damage to the pursuer's business at this time."
He also dismissed the suggestion that "cherrypicked" references to the distillery in TTC's promotional literature and on its website were attempts to draw an association with the distillery.
"That is not what their (TTC) intention is," he continued.
"The Tomatin name is conferred on the development for the obvious reason that the development is in the Tomatin area and we have heard from various sources that the Tomatin area is wider than the village itself."
Adding that it was quite clear that Tomatin was not being used as a brand name, Mr Tariq pointed to past and current businesses which had used the name, including Tomatin Country Inn, Tomatin Country Store, Tomatin Village Shop and Cheese & Tomatin in Inverness.
"That shows there are other businesses which use the name and it is capable of being used as a descriptive name for these goods and services," he said.
Mr Tariq suggested that evidence heard during the hearing had indicated that Tomatin whisky, although well known among whisky aficionados, was not widely known to the general public.
"I accept the pursuer has sold branded merchandise, but it had never made any attempt to trademark the name until five days after the press coverage of the development," he added.
Jonathan Lake QC, appearing on behalf of Tomatin Distillery, however, earlier told the hearing that the distillery's case was reasonable and justified.
"It's not enough to have an apprehension," he said.
"You have to show it is a reasonable apprehension. It does all hinge on what the defenders have said they are going to do and looking at that, there is apprehension."
Following Mr Tariq's remarks, he also told Lady Wolffe that TTC's intention to register their own trademarks made the action all the more necessary.
"The issue was already there," he said.
"It had to be answered because of the defender's actions. In no way could it be said it was premature or there was an undue rush to get into court."
The case will resume on Wednesday, May 19.
