The Mill wins whisky name battle

NICK KRAUSE
Last updated 12:48 10/07/2012

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New Zealand's largest independent liquor chain has won a trademark battle against an international whisky watchdog over the use of the name MacGowans.

Mill Liquor Save filed a trademark application in October 2009 to call a whisky-flavoured spirit MacGowans.

The Scottish-based Scotch Whisky Association took umbrage and in May 2010 filed its opposition on the basis that consumers could be confused or deceived into thinking the drink was actual Scotch whisky.

It argued Mill Liquor was unfairly taking advantage of a trade description by choosing the name and riding on the reputation of Scotch whisky.

The association opposed the application on the grounds it fell short of several sections of the Fair Trading Act. It also claimed it breached the Food Act in terms of misleading labelling, and that the name presented a false ''geographic indication'' which could infer the product may have been produced in Scotland.

However Jennie Walden, the assistant commissioner of trademarks, did not agree with the association on any of those grounds. The mere adoption of a Scottish name for an alcoholic beverage would not be enough to mislead consumers, she said.

MacGowan could be a Scottish or Irish surname, and could not be determinative of national identity because there were many New Zealanders with Scottish or Irish surnames. The name was likely to refer to a person, not a country, she said.

''The fact that Scotch whisky always appears with the whisky brand name confirms that a Scottish name alone cannot provide a concrete expectation... that the alcoholic beverage is in fact Scotch whisky,'' Walden said in her finding.

Scotch whisky must also have at least 40 per cent alcohol by volume and spirits 37 per cent. The whisky-flavoured MacGowans product has 13.9 per cent alcohol by volume.

Mill Liquor made it clear to the commissioner that its product was not a Scotch whisky or any other kind of whisky. It did not purport to contain Scotch whisky either, and its label made no reference to Scotland or that the product was Scottish.

''The opponent (association) does not have proprietary rights to all Scottish-sounding words or names,'' Mill Liquor said.

''To grant the opponent monopolistic rights in respect of all alcoholic beverages, where the name of the beverage could once have been considered Scottish, would be to grant rights in excess of what Parliament could have intended (in law).

The commissioner awarded Mill Liquor $3,120 in costs.

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- BusinessDay.co.nz

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