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happilyscentedsoul · 7 months ago

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Lallybroch: copyright vs. trademark

An excellent question was asked by our friend @rosfrank in the comments thread to 'The door faces North' post and given the cosmic amount of uninformed bullshit being ventilated for almost ten years in this fandom, I think it's time to answer it once and for all:

Whenever we are informally talking about 'owning the rights to something', I think it's very important to bear in mind a fundamental distinction between two different categories of ownership rights: copyright and trademark.

The copyright is the most familiar one to many of you. It is what you usually find on those annoying and apparently useless first or last pages of all the printed or digital editions on this planet. Something like this:

In the US, copyright issues are regulated by the Copyright Act of 1976, as included in Title 17 of the US Code. The US public authority competent for registering and managing copyright is, as predictable, the US Copyright Office.

Perhaps the most seminal US Supreme Court decision, as far as copyright is concerned, is the 1991 Feist Publications, Inc., v. Rural Telephone Service Co. In it, the Court ruled that mere compilations of information or facts (such as, for example, telephone books) are not protected by copyright, according to US law. In other words, the ancient legal concept of 'sweat of the brow' (which simply means the amount of work required to gather and compile those facts/information) is not enough to qualify a work for copyright protection, if no creative effort is added to enhance its content. This is why I have always considered absolutely ridiculous Marple's efforts to watermark public information screenshots: it is useless (to the extent that it legally protects her from nothing) and, as her timelines, a mere compilation of facts (legally ditto). A similar approach is preferred by the UK and also by many Roman law legal systems, such as the French one - just making things clearer, here, by the way.

See how 'Erself is roughly doing, right now, in this department:

But I am rambling. In my view, Lallybroch, as a pivotal concept used in Diana Gabaldon's books, is protected by the copyright granted to each and every of her books mentioning it, according to the Roman law principle 'accessorium sequitur principale' (the accessory follows the principal). So it will remain protected for at least 70 years since the last of her books mentioning it would have been published under copyright. Unless she chooses to separately protect the entire finished cycle as a whole, once Book Ten (fingers crossed) is published, preferably during our foreseeable lifetimes.

That being said, that goes only for one copyright category: (published) text - you cannot copyright that secret diary in your drawer, LOL. This is why, the current US Copyright Office records concerning Lallybroch look like this:

Sony Pictures Television Inc owns the copyright to the fictional name Lallybroch in the motion pictures category, as it is the title of the Episode 12, in Season 1 - DG has been handsomely compensated for this, no worries. And someone I have no idea about owns the rights to an original musical score she has written and titled Lallybroch in the music category, since October 2013.

Onwards to the trademark. This is something different and this is all about making your name/concept/idea profitable. It is all about branding it, putting it on a product and selling it under that brand. It includes all the graphic elements and the logo of the brand (accessorium...) - in short, its visual identity to the consumers. In the US, trademark issues are regulated by the 1946 Lanham Act and the public competent authority is the good old US Patent and Trade Office (USPTO).

Right now, the situation for the Lallybroch trademark is as follows:

So, we see three different trademarks: two of them, owned by Diana Gabaldon, are classified as 'dead' (cancelled and/or abandoned) and the third, Lallybroch Spirits, owned by S's Great Glen Company is pending approval - he will not be able to label any booze bottle Lallybroch Drink Me before permission is granted by the USPTO.

Let's unpack:

Both Lallybroch trademarks formerly owned by Diana Gabaldon were filed at the USPTO on February 21, 2000 and granted on December 12, 2000. The first was aimed at producing 'tartan fabrics for the manufacturer of clothing' and it was abandoned in December 2003:

The reason is that the owner did not file in any Statement of Use after the trademark was granted. She had three years to do so, and since she chose not to do anything about it, the trademark was deemed abandoned (Stacy K. Smith is the attorney hired by Herself, btw). That means she specifically implied not to intend using it in the future. As such, she may claim NO rights on a now free to use mark:

The second trademark was aimed at producing 'clothing, namely, t-shirts, dresses and headwear' and also 'jewelry, namely, rings, pins and necklaces'- to cut the story short: OL merchandise - and it was cancelled on March 1st, 2013:

The reason is that the owner did not file the Section 8 declaration (of continuous use for five years) within the allowed legal timeframe (6 months after the fifth anniversary of the trademark granting renewal). Her trademark federal rights are now deemed canceled (but not her state law and/or common law rights!) and if she wants to ever use that name again, she would have to start the whole process over, bearing in mind the trademark could have been granted to someone else, in the meanwhile (not her case).

And for anyone who might ask, 'Erself does not own any other trademarks whatsoever:

The other (Doll Lab - LOL for ages) Diana Gabaldon is a pharmacist from Albuquerque, NM. Chill. 🤣🤣🤣

The owner of the copyright to the fictional toponym Lallybroch, as far as published text is concerned, is Diana Galabdon.

The owner of the copyright to the fictional toponym Lallybroch, as far as motion pictures are concerned, is Sony Pictures Television Inc.

The owner of the copyright to the fictional toponym Lallybroch, as a personal work of music, is Mrs. Kelly Ruth Davis, of Pennsylvania, USA.

The owner of the Lallybroch Spirits trademark will be Sam Roland Heughan, when that trademark is granted by the USPTO.

I hope this answers your question, @rosfrank. Thank you for asking.

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happilyscentedsoul · 7 months ago

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The door faces North

This has been, by far, one of the most complex investigations I have ever done in this fandom, and I am truly sorry for the long wait I had to inflict on many of you & for the uncharacteristic radio silence in DMs and comments. During this peculiar journey, I checked, double-checked and cross-checked as many details as I could and I carefully considered at least two different theories, of which I still think they do not exclude each other. I am now confident enough to make not only an educated guess, but also a daring bet on SRH's next whisky move.

Also, sorry for the length of this post. Truly sorry - think of the completely pulverized night sleep I had to give up, in order to bring this to you.

But first, a word on Marple's obvious PR tip on the Hopetoun Estate refurbishment and distillery old/new project. I am fair game enough to tell you the obvious: her overall recounting of the principals is roughly correct, spare perhaps one or two minor details. Correct, but dry - she limits herself to the technical documentation submitted by Golden Decanters and The Hopetoun Estates Trust to the West Lothian Council for approval. She correctly points out that S is not a visible part of the deal, at this point in time and she does a decent summing up of a very, very, VERY plethoric amount of bureaucratic information. She concludes, and I think she is partially right, that he might be interested in becoming an investor (I am taking things a bit further, though). But in doing so, she focuses on the development phase of the project only: the possible connections with SRH and his own spirits business are less, if at all, obvious.

I am going to give you my view of all this charade and, if I am going to mention (and probably repeat) some things already found by her, I am going to focus on the people: this is where the whole story starts to become remarkably interesting, at least to me. After all, I remember promising you some more clarity. Here's an honest, fair play take.

Little did I know, when I started to write about that (now defunct) company, Midhope Castle Distillery, Ltd (https://www.tumblr.com/sgiandubh/748597198794670080/the-info-provided-above-is-correct-but-outdated?source=share), that my investigation would turn to this:

... for it was to be just an almost random layer of a juggernaut matryoshka of defunct or still active companies, featuring roughly the same people and no less than 6 different name combinations centered around Midhope, Hopetoun, etc.

The following pics will give you an idea - feel free to open them in a separate tab, for clarity . I preferred this synthetic approach, because otherwise you will curse the shite out of me. But it had to be done, with or without Depon, Advil's Greek cousin (and before you ask a graphologist, this is my handwriting, and nobody else's 🙃):

The only explanation for the whole almost frantic Midhope/Hopetoun crisscross/hopscotch (LOL) combos I can think of is two people trying to secure one (several?) credit lines or to attract significant investors for their project and ultimately failing to do so. But I might be wrong (although I doubt that, thank you). Out of this entire maze ( I swear I now have a migraine), there are only two active companies remaining: Golden Decanters Ltd (renamed GD Spirits Ltd, in April 2022) and Midhope Ltd (renamed Skosk Ltd, in July 2023). It is on them I am going to focus my gaze.

GD Spirits Ltd was incorporated in Berwick-upon-Tweed, England (just across the Scottish border), probably for tax reasons, on March 11, 2015, the nature of its business being listed as 'wholesale of wine, beer, spirits, etc.'. It started with a team of two women: Julia Mackenzie-Gillanders and Ann Medlock, whose names we are going to see over and over again in all the eight corporate avatars. Later down the timeline (LOL for three decades and a half), on January 30, 2018, they were briefly (until July 19, 2018) joined by two very interesting professionals: Mrs. Margaret Boswell, an attorney at the very prestigious international law firm Gide Loyrette Nouel (Paris and London offices)...

...and Ken Robertson, former Corporate Affairs Director at Diageo Whisky, a subsidiary of the international Diageo group, one of the major players on the world spirits' market:

The second company, Skosk Ltd, was incorporated in August 2021, in Perth, Scotland, its nature of business being listed as 'distilling, rectifying and blending of spirits', with the clear intention to align with the exacting criteria prescribed by the 2009 Scotch Whisky Regulations:

[ Source: https://en.wikipedia.org/wiki/Scotch_whisky - sorry, I don't have time to wax lyrical on this, and neither do you]

This time, we only meet again the two distillerettes, Gillanders and Medwick. Up until now, at least, nobody else (attorney, former sales executive, whisky expert) has joined the platoon - TBC? I would not speculate and leave all options open.

There is little to 0 transparency on Skosk's financial situation, at the moment and to be honest, it looks very much like S's co-star (hehe)'s Irish business venture...

... but I was a bit more lucky, and the numbers more chatty, as far as GD Spirits was concerned:

Paging all shipper chartered accountants out there, but to me, it doesn't look great, at the moment. Cash is ridiculous, the net worth is hemorrhaging and the current assets are negligible, compared to 2020, when I think they managed to secure one or two credit lines, but not nearly enough for what they needed. Just enough to pay themselves and their external consultants and cover the operating costs, if you ask me.

The revised Planning Statement, of 8 February 2024, posted first by Marple, echoes my initial guess (COVID blew it up, see link to the first post) and the above assessment:

Mark this: 'Discussions are now proceeding with investors and there is a realistic prospect that work will begin in the near future (2024/2025) to implement the permission.' Given that they will start with the road and parking rehabilitation and upgrading, probably overlapping with the distillery building, it would make sense to begin this autumn at the earliest, with the most urgent: access to the site itself.

The initial Planning Statement, dated 9 July 2020 and re-posted on March 21st, 2024, tells a more detailed story. This is part and parcel of the current project as well, since the revision is just pointing out the changes operated, not the entire rest, which remains unchanged. You be the judge:

Also keep in mind this tiny, tiny thing: the Business Plan is 'submitted (...) under Private and Confidential Cover'. See where I am looking?

The initial plan was (and still is) for GD Spirits to produce their own booze, using Midhope's own barley (this is very important for the rest of my theory!). They even offer an overview of the real impact of their project on the local economy:

20 to 38 initial new job creations for a £ 15 to 30 million investment is not 'huge', madam Marple. Cumbernauld is huge. This? This is rather modest, if you ask me. But hey, what do I know about the labor market, right?

That initial Statement tells also the story they want to tell about the genesis of their idea, the scouting for the right location and a couple of other interesting details:

So they are telling us they started to look for the perfect location in 2018 and oh, hello, they found the Hopetoun Estate rather quickly, already starting the pre-planning application consultations as early as July 2019 (don't get me started, please):

If so, then why did they incorporate not one, but two different companies clearly linking them to the Estate (Hopetoun Estate Distillery Ltd and Hopetoun Estate Whiskies Ltd) the same day and as early as May 23rd 2017 (and both dissolved in December 2022), as my above penciled timeline (LOOOOOL) shows? Who is really behind this project and why this entire ballet? It's like me pre-emptively looking for rental properties in (let's randomly guess) Lisbon, when it's just wishful thinking, heavily projecting and with 0 guarantees I will be posted there, right? I mean, I adore and deeply know Lisbon and I would be thrilled to go there. But I am not currently looking for any rental property, just like that, because that would be a #silly, rookie mistake. In their case, I think there's a different situation - again, you be the judge.

A first answer, as to who is really behind that project, was given by the UK media, back in 2020:

How odd, when we know that both Mrs. Boswell, the well-traveled attorney and Mr. Robertson resigned from GD Spirits in July 2018. Do they still say hi to the two distillerettes? Do they quietly keep an eye on the project? Are they silent partners? Business angels? Shareholders? Time to remind you that under UK law, there is 0 visibility on the shareholder's structure of a company. You just see the officers (Director, Secretary, etc), on the Company House website. On an umpteenth, last- second cross-check, it became apparent that Mr. Robertson remained involved in another company of the distillerettes, Hopetoun Estate Whiskies Ltd (yes, the one mentioned above), until its voluntary strike-off, in December 2022.

Their best laid plans do mention OL, and how could it be otherwise? But all this £ 15 to 30 million hullaballoo for 20.000 people only (who counted them and how?), on a seasonal basis?

High-end restaurant, luxury B&B, event spaces, you name it. Interesting, to say the least.

And, for the people in the back, who still think SRH has a 100 years lease at Midhope (Jesus H. Roosevelt Christ, the stupidity!):

This is why he commented as a 'member of the public'. At face value, there is no public involvement into that project. Yet. But it is my belief there is a vested interest in all this, justifying the comment, the visit, those papers rolled in his fist, etc. At first, I thought that was a visit to Lallybroch by the Exec Producer of OL's Season 8, to discuss technicalities - and shared that privately with a wonderful friend only. I mean, why not and still perfectly possible. But then, as I could not sleep tonight and felt guilty to have you all waiting, I started to connect some tiny dots.

Like this one, for a start:

Yes, I know, Marple told you that FIRST, I would not dare say otherwise, because if I did there would be a transcontinental screech. That trademark application was filed at the US Patent and Trade Office in September 2023 and I thought (and still partially do) it was a potential rebranding solution to The Sassenach's EUIPO nightmare (much exaggerated by the fandom's toothbrush experts):

But you also know I am an idiot and I always check people's CVs, when I follow a thread. This morning, the one Distillerette I am particularly interested in is Mrs. Julia Hall-Mackenzie-Gillanders (née Scales) and not like *urv would be.

Her LinkedIn profile is exceptionally talkative, too:

... and a BA (with Honors) in Fashion Design, class of 2005, at the Northumbria University.

The Financial Times article 'From packing boxes to wine deals worth millions', you can read on her LinkedIn page, tells a very interesting story. It is the story of a shy underdog (lots of temple bells clinging, at the moment), who made it by sheer persistence. It starts like this:

'When a painfully shy young woman contacted a fine wine merchant and said ' I have no qualifications- can I help?', she got the job and today is signing deals worth millions of pounds.'

It obviously did ring a bell and if SRH knows she exists (she is married, *urv!), and I dare to speculate he does, it must have struck a deep chord. Would I do business with her? I wouldn't speculate, although I am not very sure. Would he? He'd probably listen very carefully to what she has to pitch, for a start.

And what she has to pitch is also very interesting, in his world. A brief look at the Golden Decanters' website shows a first high-end single malt sourced collection of 4 exceptional expressions already sold out:

And when they mean high-end, they mean gold leaf labelling and all the tralala:

And, some last minute news, too:

Remind me, because I am an old woman, after this white night: wasn't The Sassenach (no comment, we agree to disagree and I am very skeptical), a blend?

We have these dots, then:

Bold Underdog ->spirits business->high-end collection of single malts sold out->business partnership with owners of Midhope Castle, fictional Lallybroch in OL, including a distillery and whisky production with Midhope/Lallybroch barley -> visit by the male lead and spirits entrepreneur (also the fictional Lallybroch laird) to Midhope/Lallybroch and vested interest in the estate's most recent business project....

What if The Sassenach would be included, for a start, in that new Blended Collection? And could it really be fanfic to imagine a future high-end, limited edition, Lallybroch whisky produced at Midhope, with Midhope/Lallybroch barley? It wouldn't be the first time, would it: after all, they did it with that limited tequila batch.

As I said, because I am (remember Someone? LOL) a 'silly cow', I was hoping he wouldn't do it. But my guess is he might very well do exactly that, with those people and under that label.

It's half past eight AM, local time and I need a strong, black coffee.

I rest my case (and I am bracing myself for the screeching). I will answer Anons later, after I come back from the hairdresser's. Appointments must be kept at all costs. Thank you all for your patience.

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