Whisky: counterfeiters scotched

DEFRA (the UK Department for Environment, Food and Rural Affairs) has announced a new package of measures designed to improve protection for the distillers of Scotch whisky. There are seven strands to the new measures:

1. Five categories of Scotch will be defined (Single Malt Scotch Whisky, Single Grain Scotch Whisky, Blended Scotch Whisky, Blended Malt Scotch Whisky and Blended Grain Scotch Whisky). These will have to be used on Scotch whisky.
2. Five regions will be defined. Only whiskies wholly distilled in one those regions will be allowed to use those names.
3. Only whisky which is a product of a particular distillery will be allowed to use the name of that distillery.
4. Labelling, packaging, presentation or advertising which suggests that a single malt was made at a distillery other than that where it was in fact made will be banned.
5. All Scotch will have to be wholly matured in Scotland
6. It will be illegal to export Scotch whisky from Scotland in wooden casks
7. It will be illegal to export single malt Scotch whisky which has not been bottled and labelled.

The IPKat reckons that Scotch whisky already has relatively powerful protection under IP law, but this set of sui generis rights will give it super-strong protection, perhaps not surprising in the light of the value of its export market. To the extent that they protect consumers from deception, they’re quite easy to justify (though strands 6 and 7 go far wider than this). However, he’s a bit concerned about the fourth strand: a rule that catches presentation and advertising could have a very wide scope indeed.