Passing off
Case Note: The Scotch Whisky
Association v Glen Kella
John Lambert
June1997
This case note originally appeared on the Lancaster Buildings website
In
recent years French wine producers have relied as much on European
legislation to protect their appellations of origin as on the law of
passing off. In Taittinger SA v Allbev Ltd. [1993] FSR 641 the
champagne houses invoked Council Regulation 823/87 to restrain the sale
of a non-alcoholic fizzy drink made as "elderflower champagne". French
wine producers have been assisted by legislation giving effect to
bilateral agreements with various overseas governments even outside the
European Union (see Comite Interprofessionel des Vins des Cotes de
Provence v Bryce [1997] 1 EIPR D-5).
It appears from Scotch Whisky Association and others v Glen Kella
Distillers (1997) New Law Digest 24th March, 1997 that Scotch
producers have begun to do the same. Relying on Council Regulation
1576/89 the Scotch Whisky Association applied for an injunction to
restrain the defendants from selling a colourless beverage distilled
from blended Scotch in the Isle of Man as "Manx whiskey".
Granting the injunction, Rattee J held that the defendant's beverage was not whisky as it had not matured for 3 years after re-distillation as required by the Regulation. The further distillation affected the chemical composition of the drink to the extent that it was no longer whisky. The sale of the beverage as whiskey was misleading and might erode in time the reputation of Scotch if not restrained.
