Legal Commentary

Appeal court rules on war of whisky words

By David Canton

For the London Free Press - April 6, 2009

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SPIRITED ARGUMENT: Geographical indicators aim to protect certain regions’ wine and liquor from imitators

With barbecue season fast approaching, the most obvious topic of discussion is trade-marks and alcoholic beverages.

Provisions in the Trade-marks Act and food and drug regulations govern words associated with wine and spirits. The provisions stem from international agreements that let certain regions protect against suggestions a product has a certain origin, quality or association when it doesn’t.

For example, unless you make “sparkling white wine” in Champagne, about 160 kilometres east of Paris, you can’t use the word “Champagne” to describe your product.

There are similar restrictions on names from Chianti and Cognac, to Moselle and Scotch whisky.

Many people think these are types of wines or spirits, but they’re really geographical indications of the products’ origin.

Geographical indications can be given protection, similar to trademarks. The aim is to try to limit the tort of passing off, in which a person may try to pass off products as being associated with a region when they are not.

Most regions with geographical indications impose minimum standards on users to safeguard their area’s reputation.

A recent Federal Court of Appeal case, Glenora Distillers International vs the Scotch Whisky Association, illustrates this point.

Glenora, a Cape Breton, N.S., distiller, claimed its single malt whisky was distilled using the traditional Scottish method and that it had the taste, character and aroma of a Scotch whisky.

But Glenora can’t call it “Scotch” because “Scotch whisky” is a protected geographical indication that can only be used for whisky produced in Scotland that meets certain requirements.

The court also noted Glenora couldn’t call it “Canadian whisky,” either, because it didn’t have the “taste, character, and aroma associated with Canadian whisky.”

Glenora was allowed to use the trade-mark Glen Breton, despite the association’s argument that the name could be confused with famous trade-marks Glenfiddich, Glenmorangie and Glenlivet.

Geographical indications are not automatic. To register one must apply to the government to be listed as a recognized geographical indications. To qualify, the wine or spirit must come from a region of a World Trade Organization member where a quality, reputation or other characteristic of the wine or spirit is essentially attributable to its geographic origin.

With some geographical indications, such as Irish or Scotch whisky, Niagara-On-The-Lake, or Canadian rye whisky, it’s obvious where the wine or spirit originates. But others, such as Beaujolais or Valpolicella, are not so obvious if one is not familiar with the region.

The list of protected regions recognized in Canada is online at http://napoleon.ic.gc.ca/cipo/ listgiws.nsf/gitoc-e?OpenForm.

Full post as published by eLegal Canton on April 06, 2009 (boomark / email).