Keeping Scotch off the rocks

Roger Pearson reports on the team of lawyers responsible for upholding the name and quality of Scotch whisky.

It is unlikely that there are many lawyers more passionate about Scotch whisky than Quintin Stewart and his specialist four-man team.

Along with Stewart, Glen Barclay, Magnus Cormack and Euan Duncan are the in-house lawyers for the Edinburgh-based Scotch Whisky Association and are behind a global crusade to keep the name of Scotch pure.

The team's success rate is enviable. When Scotch whisky was re-distilled on the Isle of Man and marketed as “white whiskey”, it went to the High Court and won. Similarly, it recently succeeded in blocking the sale of so-called “Welsh whisky” on the basis it was, in fact, Scotch whisky bottled in Wales.

But UK court cases are the tip of the iceberg. The team spearheads an international crusade which takes it to the far corners of the world.

Scotch is currently sold to over 200 different markets, so it is not surprising that battlegrounds of Stewart's team include the US, Israel, New Zealand, Malta, Taiwan, Malaysia and Andorra.

“Our target is to ensure that anything sold as Scotch whisky truly is Scotch whisky,” says Stewart, who has worked for the association since 1974.

But, as the team knows, the name of Scotch whisky is one of the most highly prized in the world of drink and a likely target of rip-off merchants. The name of Scotch is exploited in many jurisdictions as unscrupulous individuals pass off inferior liquor as the real McCoy.

This means that the team has to be up to speed, or able to bring itself up to speed rapidly, on various passing off laws and unfair competition legislation.

Passing off laws can vary from jurisdiction to jurisdiction, and there have even been cases where new legal territory has been pioneered abroad. In Poland a few years ago the team took action which resulted in ground-breaking litigation under Poland's newly introduced unfair competition legislation.

The need to use varying foreign laws means that Stewart's team relies heavily on lawyers in the countries in which it is mounting action.

In a rare twist, thanks to the international flavour of the business, some foreign lawyers have now taken on a supporting role as amateur detectives searching out offenders – no doubt partly spurred on by the fact that they are likely to receive further instructions.

Stewart recalls an Italian lawyer acting for the association whose wife then made it her personal mission, every time she went to a supermarket, to trawl the drink shelves and report on any instances she discovered of non-Scotch whisky being sold as the real thing.

Stewart's team itself also occasionally acts as both detective and prosecutor. Members of the team invariably patrol supermarkets and markets when they are abroad, looking for fake Scotch whisky.

Choosing a forum for this sort of litigation is of course important. Sometimes there is little sense in mounting legal action on the other side of the world against local producers. Often the key players can be based in countries much closer to home – even in the UK – where the laws to prevent passing off are more straightforward.

But prosecuting the ring leaders makes better sense than going for local producers, particularly if they are closer to home where British laws are more user-friendly.