Judge mulling battle of the Macs
An Australian "whisky lookalike" that claims to "evoke the flavour of the Highlands" has ruffled the kilts of the proud Scots who distil the real dram.
The Scotch Whisky Association fears shoppers might be confused or deceived about what they're getting for their $10 when they buy bottles of MacGowans at The Mill Liquor Save.
The Mill has been selling the whisky-flavoured drink, which has a 13.9 per cent alcohol content, for about two years.
Its application to register MacGowans as a trademark has been accepted, but the Scotch Whisky Association, whose members produce more than 90 per cent of Scotch whisky, has appealed against the decision.
In the High Court at Wellington yesterday, the association's lawyer agreed that, even if it won, the cheaper, weaker, brown drink would still be sold at The Mill.
However, it could become the basis for a Fair Trading Act case.
If the MacGowans name was trademarked, it might stop Scotch whisky with a similar "Mac" or "Mc" name being sold in New Zealand, lawyer Greg Arthur argued.
Justice Stephen Kos, who admitted having shopped for whisky, said his thinking was still "reasonably fluid" on the case and he would give his decision in writing.
Mr Arthur said the use of a "Mac" or "Mc" name in connection with whisky linked it to Scotland but, at $9.99 a bottle, people might be aware they were not getting top-quality Scotch whisky.
The Mill's lawyer, Simon Elliot, said the MacGowans name alone did not prove consumers would think they were buying whisky.
The association had not put forward any evidence about what New Zealand consumers thought of Mac or Mc names.
It had belatedly put forward evidence of confusion about MacGowans, but without saying whether it was the name or the surrounding circumstances that caused confusion.
Whisky or whiskey is made from fermented grain mash.
Different grains are used for different varieties.
All whiskies must be distilled at a minimum of 40 per cent alcohol by volume.
MacGowans, made in Melbourne, describes itself as "finest distilled spirit blended to evoke the flavour of the Highlands".
It is made of an unnamed spirit, sugar, colour and flavouring. It contains 13.9 per cent alcohol by volume.
Scotch whisky (made in Scotland) is spelled without an e. It is made mostly from malted barley.
The Scotch Whisky Regulations 2009 state that Scotch must be produced at a distillery in Scotland from water and malted barley, be processed at a single distillery, be wholly matured in Scotland in oak casks for at least three years, and comprise a minimum alcoholic strength by volume of 40 per cent.
Irish whiskey must be distilled and aged in Ireland, and be aged for at least three years in wooden casks.
Bourbon is an American variety and must be made from a grain mixture t