Scotch whisky enthusiasts have won their trademark battle with a Kiwi liquor chain over a "whisky- flavoured spirit" they felt was trying to pose as the real thing.
But the victory has came about not because MacGowans - an Australian "distilled spirit" - isn't a whisky but because it's not even a proper spirit.
The High Court at Wellington ruled yesterday that MacGowans should not have its trademark registered.
Independent liquor chain Mill Liquor Save has been selling the flavoured and coloured drink, "blended to evoke the flavour of the Highlands", for about two years. It applied to trademark the name in 2009 and was granted permission in July.
But the Mill has been fought all the way by the Scotland-based Scotch Whisky Association, which felt consumers could be duped into thinking MacGowans was Scotch whisky.
In his decision yesterday, Justice Stephen Kos upheld the view of assistant commissioner of trademarks Jennie Walden that alcohol buyers were not "careless, gullible or stupid" enough to be deceived or confused by the MacGowans trademark on whisky-flavoured spirits.
But the assistant commissioner was wrong to find MacGowans was even a spirit at all, he said.
At 13.9 per cent alcohol, it falls well short of the legal definition of spirits under the Food Act 1981, which says they must contain at least 37 per cent alcohol.
"Quite what sort of beverage this is was never entirely clear . . . it has a dark-tan colour reminiscent of whisky," Justice Kos said. "At the very least, a product incapable of being labelled 'spirits' cannot be treated as spirits."
He awarded costs to the Scotch Whisky Association.
In an affidavit to the court, Mill credit controller Brenda Kelly stated the product "is not whisky" then went on to say it "is not a spirit or a wine", yet the trademark application was originally for a "whisky-flavoured spirit".
During the High Court hearing, Ms Kelly attempted to prove the name MacGowans was not especially evocative of Scotland by pointing out that Dunedin's phone book had proportionately the same number of McGowans and MacGowans as Edinburgh's.
- © Fairfax NZ News
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