Alcohol

Scotch Whisky Makers Don't Want a Virginia Distillery Using the Word 'Whisky'

What's in a name? Money, apparently.

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Last week a Scottish whisky association filed suit against a U.S.-based distiller over the latter's use of the Scottish terms "whisky" and "Highland" on its labels. The suit was filed by the Scotch Whisky Association (SWA), a Scottish trade group that represents more than 9 out of every 10 of the world's Scotch Whisky makers.

The SWA lawsuit, filed in U.S. District Court in Delaware, alleges the Virginia Distillery Company's use of the term "Virginia-Highland Whisky" is false, misleading, and deceptive. Among its claims, the SWA alleges that Virginia Distillery Company's marketing violates the Lanham Act, a law that governs trademarks and which I discussed at some length in a 2014 column

"Defendant's prominent use of the term 'Highland' and its spelling of 'Whisky,' among other things, falsely indicates to the public that Defendant's product is Scotch Whisky when it is not, and/or that it is whisky that originates in Scotland, which it does not," the lawsuit states.

In a statement issued in the wake of the lawsuit, Virginia Distillery Company CEO Gareth A. Moore defended the company's labeling and marketing.

"Our label clearly indicates the source of our whisky, stating 'Whisky from Scotland, Married with Virginia Whisky,'" Moore writes of the company's blend, "and we have always been upfront in descriptions to our customers."

Any differences between whisky and whiskey (or Scotch, bourbon, rye, and other similarly distilled spirits) boil down largely to geographic and legal standards. "American-made and Irish-made spirits are traditionally spelled 'whiskey' while 'whisky' is used primarily in Scotland, England, Wales, Canada, Australia, and New Zealand and most areas of the United Kingdom," a Daily Progress piece on the litigation explains.

The SWA acts as something of a protector of the realm, seeking "to sustain Scotch Whisky's place as the world's leading high-quality spirit drink." The group pursues this goal by "protect[ing] Scotch Whisky from those who want to take advantage of its popularity by selling fake Scotch or trading unfairly on its reputation." (The SWA also creates clever videos such as this one, which blends humor, Neil Diamond, and a wee dram of xenophobia to make its point that Scotch should only be made in Scotland.)

The SWA has gone after allegedly fake whisky makers for decades. A Whisky Advocate piece notes that whisky giant Dewar's—itself an SWA member—ran afoul of the SWA several years ago by marketing a honey-infused whisky. The SWA alleged the product's labeling—which included an accurate description of the bottle's contents: "Dewar's Blended Scotch Whisky Infused With Natural Flavors"—should not use the term "whisky" because U.K. rules don't allow for the addition of anything to Scotch whisky, save for water and caramel coloring. Earlier this year, the SWA sued distiller Arkay over the company's seemingly novel "alcohol-free whisky flavored drink."

The role of the SWA is therefore similar to (likely) hundreds of other origin-centered food trade groups, including, for example, the Parmigiano-Reggiano Consortium, which promotes "the defen[s]e and protection" of the cheese's Italian origins.

From a purely legal standpoint, the SWA suit would appear to have a good case. U.S. regulations, the lawsuit notes, declare "Scotch whisky" (though not necessarily "whisky from Scotland") to be "whisky which is a distinctive product of Scotland, manufactured in Scotland in compliance with the laws of the United Kingdom regulating the manufacture of Scotch whisky for consumption in the United Kingdom." These same rules also state "'Highlands' and similar words connoting, indicating, or commonly associated with Scotland, shall not be used to designate any product not wholly produced in Scotland." And U.K. rules, the lawsuit also notes, require "Scotch Whisky" to have been "produced in Scotland."

Even if the rules appear to be on the side of the SWA, should they be? As I've long argued, including in my recent book Biting the Hands that Feed Us, standards of identity tend to protect large incumbent producers, stifle innovation and competition, and harm consumers.

Whisky producers in Scotland have chafed at the country's ossified regulations and resultant stymying of innovation. Whisky Advocate reported last year that Diageo, the alcohol giant that owns several of the leading distilleries in Scotland (along with Irish brewer Guinness and many other leading brewers, vintners, and distillers), had created "a 'secret task force' last year to determine how Scotch whisky is 'constrained' in regulatory, legal, technical, and other ways, and to explore the 'scope for reform.'"

The Scotch Whisky Association is well within its rights to sue in order to force competitors to play by the rules. But if some of the SWA's leading members think the rules stink—and they do—then the SWA could and should find a different path forward.

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  1. The SWA spokesman also had this to say.

  2. A union that puts its own power and interests above its members’ interests? What a shocking and novel development!

  3. Scotland and Scotch they have a legitimate claim to. Whisky vs whiskey seems pretty sketchy given the evolution of the English language and the very loose approach to spelling at the time these traditions diverged. Highlands, though? Are they seriously claiming that the only high lands in the world are in Scotland? That’s ludicrous. Many places are legitimately called highlands with no reference to anyplace in Scotland.

    1. I’ve never heard of the Virginia Highlands. Is there really such an area, or are the distillers just using the term to make buyers think of Scotland?

      1. Philistine!
        There have been highlands in Virginia since the first tectonic plate slip.

        1. Any immortals hailing from there?

      2. Yes, there really is such an area. Google (or MapQuest) is your friend.

        There’s also the Laurel Highlands in western PA, an Arlington Highlands near Dallas and another Virginia Highlands near Atlanta to name just a few.

        1. Atlanta’s Virginia-Highlands neighborhood is so named because Virginia Avenue and North Highland Avenue cross there, though.

      3. I get a lot of hits for Virginia Highlands Festival, Virginia Highlands Park, etc. Also Grayson Highlands Park in Virginia near Mount Rogers and Whitetop Mountain, Virginia’s two tallest mountains at over 5,000 ft. That’s high land in Virginia.

        So there’s a connection between Highlands and Virginia, and given the role of Scots-Irish colonial settlers in the highlands of Virginia in bringing whiskey making to the mountains as a craft, well duh.

        I really don’t think “Virginia Highlands Whisky” would be assumed to be Scottish or Scotch; I am not finding a Virginia in Scotland. There is a Scotland (pop. 203) in Virginia near Pleasant Point.

    2. They should change it to “Virginia Highlands: The Champagne of Bourbons”

  4. “The SWA acts as something of a protector of the realm, seeking “to sustain Scotch Whisky’s place as the world’s leading high-quality spirit drink.”

    1) Capitalizing “Whiskey” doesn’t make it a proper noun, and writing “glasgow” in lower case wouldn’t make it any less of one.

    2) Plenty of discriminating drinkers prefer Irish whiskey.

    3) My understanding is that people in Scotland primarily drink beer.

    4) It’d be nice to think that turnaround was fair play, but whiskey sales to consumers in Scotland aren’t the issue. They’re rent seeking in American courts to try and hurt the sales of their American competitors in Asia and the EU.

    5) If the Scottish can’t distill whiskey that’s good enough to justify the price premium they charge over American competitors, they should adjust their pricing accordingly, cut production, or just fuck off.

    1. The Scotch produce some very nice whisk(e)y. Oban and Bowmore are both excellent (only the Bowmore is overly-pricey). Both sit in my cabinet, along with Knob Creek rye whiskey and Makers Mark. One might even find a bottle of JD or JB in there once in a while, The regulations which seem to allow for the lawsuit are really, really stupid. The spelling of the word, which, is, basically, accidental (and incidental), seems a weak excuse on which to establish law.

      1. Yeah, but it requires uses barrels saturated with Tennessee Whiskey or Kentucky Bourbon for the Scots to get it right

        1. The lore is that Scots are just too cheap to use new barrels.

          1. Its kinda expensive to ship barrels across the Atlantic

            1. https://vinepair.com/articles/bourbon-to-scotch-barrel-cooperage/
              Inside A Cooperage Where Bourbon Barrels Become Scotch Whisky Barrels</b
              Few places love American bourbon barrels as much as Scotland. … One of the largest cooperages that rebuilds those barrels is Diageo’s Cambus Cooperage in the spirit company’s sprawling Blackgrange Scotch whisky complex in the Speyside region of Scotland.

              It’s worth it to them.

              1. An Edit function would be worth something too.
                I’d even settle for a Preview before Post function.

  5. “Drink scotch whisky all night long, and die behind the wheel…”

    Regional protectionism is common in the food and beverage industry and apparently is xenophobic.

    1. I don’t know how many threads we’ll get today . . .

      Kamala Harris is becoming the default nominee.

      She didn’t get caught up in a race with Warren to see who can be more socialist than Bernie Sanders, which makes Harris the logical centrist candidate once Biden, inevitably, falters.

      She’s a woman and a minority, which appeals to super delegates.

      She has the political machine in California behind her with all those delegates, and her law and order credentials are likely to play well in Texas–a key state. Bernie’s appeal probably doesn’t penetrate Appalachia, the South outside of Florida, Texas, or penetrate west of Ohio, and he has to split all those areas with Warren. With Harris making a good showing in California, can you imagine Bernie Sanders or Elizabeth Warren, a gun grabbing, former Harvard professor, counterbalancing that by doing well in Texas?

      If the economy stays as it is, Trump is likely to win reelection, but if Harris emerges as the nominee, she’s far more appealing to swing voters than Hillary Clinton was. I suppose the good news for Trump is that the markets have priced in at least a couple of rate cuts in the near future, which doesn’t hurt Trump’s reelection chances at all. Still, if I had to guess which, if any, Democrat is likely to be our next president at this point, I’d bet on Kamala Harris–if not in 2020, then she’ll probably emerge as the favorite in 2024.

      1. Wasn’t supposed to be a reply.

        Damn squirrels.

        1. Yeah, blame the innocent squirrels. (joke). Unfortunately, I tend to agree with your assessment of Harris’ chances. That being said, I have been following her for years (being a recently-displaced Californian), and I find her rather…. scary.

          1. Yeah, she’s dangerous as fuck.

            1. As her “tough cop” baggage becomes more known she’ll slide back in popularity.

              1. I think that helps with swing voters in places like Texas.

              2. She loves throwing brown people in prison which should appeal to the white supremacist voters.

      2. She’s may not be a natural born Citizen.

        1. She was from her mother’s womb untimely ripped?

          (Trying to keep up the Scotland theme here)

      3. Texas isn’t a swing state. If she wins Texas it will be because she got 400 electoral votes.

      4. This thread derailment is tied to Scotch Whisky? Don’t see the connection.
        Oh. It was caused by Scotch Whisky. Nevermind.

      5. no (D) will do well in Texas.

  6. Are you saying that standards of identity even in theory hurt consumers? Or that empirically, institutionally, the particular standards of identity that get adopted hurt consumers? Because I could get the latter’s being true — an implicit argument for anarchism — but not the latter — an explicit argument for anomistic anarchism.

    1. I meant “not the former”.

  7. I’m using “anomistic anarchism” in Eltzbacher’s sense: lawless anarchism. My readers tend to guess wrongly that anomistic relates to anomie rather than absence of law.

  8. First, I’ve been to this distillery. To the best of my knowledge, their whisky is “produced” in Scotland, yet it is finished in barrels there at the distillery in VA (or, at least, that was the case when I went there three years ago).
    Second, I’ve always seen the spelling difference between whisky and whiskey the same as I see the difference between color and colour. (I even knew a Scot who insisted that there was only one way to spell it – thus the other way is spelled wrong)
    Third, it looks like the SWA should be filing suit against Suntori any day now – they also spell it without an “e.”
    This is a bloody stupid suit that will cost both parties money, and come down to semantics and parsing language.

    1. “This is a bloody stupid suit that will cost both parties money, and come down to semantics and parsing language.”

      And that is the “up-side.”

  9. Price of scotch whisky is quite high these days. There are lots of us distilleries now that make some excellent bourbon and rye among others. I stopped buying imports.

  10. …while ‘whisky’ is used primarily in Scotland, England, Wales, Canada, Australia, and New Zealand and most areas of the United Kingdom…

    If it’s already been watered down to that degree, there’s hardly an advantage to the spelling.

  11. 21st century nonsense: fat, hairy humans with beards can call themselves women, but a bottle of booze must identify according to 17th century traditions and spelling.

    I know which one I would be more disappointed in by mis-labeling.

    1. I wonder what would happen if you told an officer at a DUI checkpoint that you weren’t drinking because your alcohol identifies as water.

  12. They are clearly trying to profit off the association with Highland Scotch. So I am not offended by this suit.

    However I am mystified by the phrase “England, Scotland, Wales … and most of the U.K.”. Wtf. Read your shit before you hit submit.

  13. How about just not using the word “Scotch”?

  14. It’s alcohol. It’s caramel colored. It tastes like Shetland pony pee, which is appropriate. So big deal. But I don’t drink, so the subtleties of this escape me.

    Earth Skeptic has the sensible view.

  15. Someone also might point out that Whiskey, however you want to sell it, also plays an important role in American identity. The forces behind the Whiskey Rebellion are still fundamental to the kinds of dynamics that play out between east coast elitists and populists in the middle of the country today. Furthermore, the Whiskey Rebellion is seen as proof (in certain corners) that the Constitution succeeded where the Articles of Confederation failed, especially when compared to the government’s tepid response to Shay’s Rebellion. I should add that when I think of Whiskey distillers across Kentucky, Tennessee, Virginia, and elsewhere in Appalachia, I think of that connection to the Whiskey Rebellion. It sustained itself through bootlegging all the way through the Prohibition . . .

    If national identity is important, then America has a claim to Whiskey on that basis, too, however they want to spell it.

    1. Fun fact (or at least good story): the reason most famous Scottish distilleries are on remote islands or in hard to reach glens has a similar history. The crown wanted to control, tax, or close whisky producers and got most of the ones that were easier to reach.

  16. U.K. rules don’t allow for the addition of anything to Scotch whisky, save for water and caramel coloring.

    Add “water and caramel coloring”?! BLASPHEMY!!

  17. Scotch is a human right!

    1. There is no God but Highlander, and Sean Connery is his only profit!

  18. The Scots and Irish should go back to calling it by it’s prrrrroper name, Usquebaugh.

  19. You Scots sure are a contentious people.

  20. Really? A legal distinction between whiskey and whisky?
    How about potato and potatoe? (and which makes vodka?)
    Theater and theatre?

  21. So if they just slip in an “e,” to make the word “whiskey,” they’re OK?

  22. Can I make a whisk(e)y with a logo of a hairy Loch Ness Monster, and call it Sas-Scotch?

    1. You could, but you should not.

    2. Lmao!!!

  23. I am no lawyer, I just play one on the internet; but I am a bit skeptical that the UK laws on how you can trademark “whiskey/whisky” would apply in US courts. Unless theres some international trademark agreement or something, which would be inconsistent with other labeling laws.

    Case in point, theres actually a law (I forget if it’s French, or part of EU code after successful lobbying) that you cant sell “champaigne” unless it’s produced within certain French towns, but it doesn’t apply to US customers. Moreover, you could even slap a French flag as part of your logo for marketing purposes, and it would still probabbly fly.

    Unless someone heavily lobbied a US politician to explicitly get “Whiskey” trademarked, what am I missing?

    1. To quote the US Code of Federal Regulations, Title 27, Subpart C, Section 5.22(k)(4)

      The words “Scotch”, “Scots” “Highland”, or “Highlands” and similar words connoting, indicating, or commonly associated with Scotland, shall not be used to designate any product not wholly produced in Scotland.

      The reason that’s US law is because of international trade agreements adopted into US law including provisions on regional identifications, that (for example) also reserve the name “bourbon” to products made in the US.

    2. The Pure Food Law of 1906 incorporated the U.S. Pharmacopoeia by reference, and whiskey there is defined as made from grain. TR’s pet Government Chemist Wiley got the Solicitor of the Dept of Ag. to begin the initiation of force to stop marketing of rectified spirits, October 3, and by October 7 copper shares led the general drop in market prices as the Panic set in. Prohibitionism and stock market agorism are not at all compatible.

  24. Since it’s a legal matter, please tell me they closed the Complaint with, “Nemo me impune lacessit.”

    Or at very least, “Look, for the last time, we have nothing to protect but our honor. So you can take your cheap horse p**s that you call whiskey, which, by the way, is spelled without an ‘e’ and is nothing compared to a single malt scotch and you can go ***k yourself.”

  25. Something similar happened just before the Panic of 1907, after the Pure Food law of 1906 became enforceable. Pressure groups sought to use this labeling law to stop rectifiers from selling flavored neutral ethanol as whiskey. Attorney-General Bonaparte’s remarks on the issue in October 1907 are unprintable today, but efforts to ban liquor, cocaine, wine opiates and whatnot were everywhere afoot and the Panic of 1907 was the harbinger of deep recession. Some folks never learn…

  26. […] On 21st July 2019 Scotch Whisky Makers Don’t Want a Virginia Distillery Using the Word ‘Whisky’  Reason […]

  27. For Pete’s sake- moonshine made without benefit Virginia’s peat bogs and barley fields has nawt to do with Scotch.

    The enterprising Japanese on the other hand, produce some noble counterfeits by growing barley from imported Scottish seed and malting the result with Scottish peat .

  28. I have a fundamental issue with telling people and companies how they can label things. Is it actually misleading to call the Virginia product Highland or Whisky? It’s a word. It doesn’t mean anything independent of the meaning we assign it. Whisky could mean flat tire and Highland could mean lightning. There’s no point in restricting use because the actual objective information is still there. Scottish Whisky is produced in Scotland and they can claim so. If the Virginia whisky were to claim so, they would be lying.

    Truth doesn’t need defending in this case.

  29. Whisky isn’t about who made the drink or where it came from, but how it is made. I’ve had Japanese Whiskeys better than some so called Scotch Whiskys.

  30. SWA is objecting to Virginia Distillery using the brand name “Virginia-Highland Whisky” and claiming the use of “Highland” and the spelling of “Whisky” falsely indicates to the public
    (a) that Defendant’s product is Scotch Whisky when it is not, and/or
    (b) that it is whisky that originates in Scotland, which it does not.

    I read the brand name “Virginia-Highlands Whisky” as indicatimg it is a distilled alcohol beverage made by the Virginia Distillery located in the Blue Ridge Mountains of Virginia. I might get the impression now that SWA has brought it up (Streisand Effect anyone?) that it is made in the tradition of Scotch Whisky, but I would not mistake it for Glenlivet. It is “Virginia-Highlands Whisky”.

    My concept of Virginia Highlands is Blue Ridge Mountains in Southwest Virginia near the Tennessee-North Carolina border, or north of the Smokey Mountains (probably due to Virginia Highlands Community College, Abingdon VA). Virginia Distillery is still in the Blue Ridge range but is more north and east, nearer to Richmond than to me.

    Virginia Distillery should thank SWA for all the free publicity.

  31. I wonder if those in the UK will sue if someone uses their spellings for theater (theatre) or color (colour) as well?? OMG what if we start using their pronunciation for Aluminum (Aluminium)? The horrors!!!!

  32. first world problem.

  33. Note that Maker’s Mark Bourbon Whisky is whisky (and not whiskey)!

    https://images.app.goo.gl/6LsNYzhKbAT39HVp9

  34. A local distiller near me is making “Bourbon Whiskey”. I drink Bourbon, so I pointed out that Bourbon can only be made in four Counties on the Ohio River in Kentucky. Her answer was that is they are making “Bourbon Whiskey” not “Bourbon”. Words change everything, but also deceive.

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