Legal breakthrough for Scotch in India
25 Feb 2016
India is the world's largest market for spirits, but Scotch
still only makes up less than 1% of India's total spirits
consumption. That leaves vast potential for growth once issues such
as the 150% import tariff on spirits are tackled.
The problem of misleading practices also has to be addressed in
India, as in other markets, whereby companies try to take unfair
advantage of the success of Scotch.
That's why the industry is toasting a number of legal
breakthroughs following recent court success in India to protect
Scotland's national drink.
Just two months after we filed court proceedings against three
related companies in India - Oasis Distilleries Ltd, Adie Broswon
Distillers & Bottlers Pvt Ltd and Malbros International Pvt Ltd
- permanent injunctions have been granted against each
The court has prohibited the defendants from selling whiskies
they produce in India with references on their labels to 'Scotch',
'Scotch Whisky' or 'Scotland'.
The companies have also been prohibited from using any words,
names, images or devices evocative of Scotland or Scotch Whisky
unless the product is genuine Scotch Whisky.
This court decision represents a number of legal 'firsts' that
we have welcomed.
This was the first action we raised using measures in the Spirit
Drinks Verification Scheme.
The scheme was launched in January 2014 to give consumers of
Scotch Whisky around the world even greater reassurance that what
they are buying is the genuine article. It ensures that every part
of the Scotch Whisky supply chain, from distiller to bottler,
across the globe, is mapped by the industry and registered with the
UK Government to ensure it complies fully with all production and
bottling rules. Bottlers outside Scotland wanting to use Scotch
Whisky as a constituent in a local spirit also need to be verified
under the scheme.
It was also the first action we took under new Commercial Court
rules in India. These rules were introduced at the end of 2015 and
are designed to resolve court actions promptly and efficiently.
The proceedings related to three "whiskies", Royal Arms, Blue
Patrol and Malbros, all referring to Scotch Whisky on their
None of the three companies described as the bottlers of these
brands were listed under the Verification Scheme. We argued that
this indicated that since at least 10 January 2015 the defendants
could not have been supplied with bulk Scotch Whisky for blending
and bottling. But by September 2015 all three products were
still advertised on an Oasis Group website with marketing,
labelling and packaging referring to Scotch Whisky.
We said that the absence of verification suggested there was no
Scotch Whisky in the products, meaning they infringed the SWA's
registration of 'Scotch Whisky' in India as a geographical
We also argued that the "additional protection" granted to
Scotch Whisky under the Indian GI Act meant no reference could be
made to Scotch Whisky in the labelling or advertising of a whisky
produced in India, even if it contained some Scotch.
Finally, we said that the labelling, packaging and advertising
of these products was misleading and this infringed the registered
GI, 'Scotch Whisky', and amounted to 'passing off'.
Such decisions can only be good for Scotch in India, and for
consumers. Let's raise a dram to that.
Kenneth Gray is senior legal counsel at the Scotch