What got the judge excited in look-alike whisky barney

The MacGowans' drop in question...

A High Court judge is bringing his specialist knowledge of whisky to bear in the case of the $9.99 tipple.

The Scotch Whisky Association is in Wellington court to protect its malt drop against a cheap whisky-flavoured knock-off.

It is appealing an earlier decision from Trade Mark’s assistant commissioner Jennie Walden not to revoke a trademark for MacGowans’ whisky-flavoured spirit.

The Mill Liquorsave applied for the trademark in October 2009 and in May 2010 the association objected to it.

In court today, association lawyer Greg Arthur told Justice Stephen Kos consumers could be confused or misled into thinking the drink was actually Scotch whisky from Scotland.

He said consumers would be likely to be misled by the name of the drink and the words on the bottle, which read "The finest distilled spirit blended to evoke the flavour of the Highlands".

“The use of the word 'Highlands' unquestionably takes you to Scotland.”

Mr Arthur said using the prefix "Mac" on a bottle of Scotch whisky clearly draws an association with Scotland.

The prefix is often associated with Scottish and, to a lesser extent, Irish names, he said.

In her June decision, Ms Walden said she did not consider the mere adoption of a Scottish name for a beverage, even an alcoholic beverage, is capable of misleading any member of the public into thinking the product is Scotch whisky.

“I am not aware of any suggestion that the use of the word ‘Drambuie’ has ever misled people into believing that the well-known liqueur is Scotch whisky.”

Justice Kos said he had to look at the level of confusion and deceit to New Zealand customers, leaving aside his specialist knowledge of the subject.

“There are a lot of ‘Mac’ whiskies which have Scottish names, which don’t come from Scotland. I’m using my judicial knowledge …I do know quite a bit about this,” Justice Kos said.

He cited the McClelland's brand as perhaps the most well-known in New Zealand.

“I know what can be found on the shelves of a New Zealand liquor store in this area. You are fortunate or unfortunate that I’m the judge you’ve struck for this one,” he told Mr Arthur.

Mr Arthur later pulled out a bottle of MacGowans’ whisky as evidence, but had to put it away after Mill Liquorsave’s lawyer Simon Elliot objected to it being used.

“I was excited when I thought there’d be a physical view [of the bottle]. I am less excited now,” Justice Kos said.

He said there is no question MacGowans is not Scottish whisky and thought maybe shoppers would realise they were not getting the finest whisky when it costs just $9.99 a bottle.

Mr Elliot disagreed people had to be Scottish or Irish to hold the prefix "Mac" in their name.

The appeal continues.

bcunningham@nbr.co.nz

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3 Comments & Questions

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Yes, anyone who is particularly looking for Scotch Whisky will generally be aware that it can only be labelled Scotch if it fulfills certain criteria.

If not, it won't be.

It's no more unclear than Champagne versus other sparkling wines.

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Aha, so then a Macintosh is a Scottish computer?

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The learned Judge was absolutely correct to suggest the price might give it away.

He would be less than happy should he receive a bottle of this stuff for his birthday. However, it seems that it is somewhat cheaper than a can of Brasso and might do a fine job cleaning the door knobs.

Mixed with some methylated spirits it might even give a sound foundation for a sparkling cocktail that one might share with friends under the Grafton Bridge.

On the other hand, the product might be what is called "entry level" Scotch and inspire the young consumer to seek the solace that only a fine, aged bottle of malt can provide.

On reflection, perhaps we all would be safer with a fine flagon of cooking sherry.

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