Intellectual Property in Scotland
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As we celebrate World Whisky Day® (17th May), it is only natural that we turn our thoughts to Scotch Whisky, our very own emblematic product, here in Scotland.
This article examines the steps taken to ensure the integrity of Scotch Whisky against the context of a worldwide and highly competitive whisky industry. We will see especially how IP law contributes to this aim. A must-read for whisky producers and whisky connoisseurs alike!
Scotch Whisky, legal definitions and descriptions
Scotch Whisky as it stands today has been defined in UK law since 1988 and is currently governed by the Scotch Whisky Regulations (SWR) of 2009.[1]
Very precise rules apply to its production, but also to its labelling, packaging and advertising.
To qualify as Scotch Whisky, a whisky must:
- be distilled in a distillery in Scotland;
- be distilled from water and malted barley which have been processed into a mash and fermented by the addition of yeast in that same distillery;
- be matured in Scotland, in oak casks, for at least three years;
- have a minimum alcoholic strength by volume of 40%.[2]
Importantly, only Scotch Whisky may be produced in Scotland, which means that any whisky producer in Scotland must comply with the definition underlined above. Additionally, no other whisky than Scotch Whisky may be matured or blended in Scotland. This is to avoid the scenario – confusing to the consumer! - where a whisky other than Scotch could be described as “matured” or “blended in Scotland” despite differences of process and ingredients, for instance.
Although only Scotch Whisky can be produced in Scotland, there are however no less than five different categories of Scotch Whisky:
- Single Malt Scotch Whisky; a whisky distilled at a single distillery, from water and malted barley as the only cereal, in pot stills.
- Single Grain Scotch Whisky; a whisky distilled at a single distillery, from water, malted barley and other types of cereals (such as wheat or maize), in continuous stills.
- Blended Scotch Whisky; a blend (or combination) of one or more Single Malt Scotch Whiskies with one or more Single Grain Scotch whiskies.
- Blended Malt Scotch Whisky; a blend of two or more Single Malt Scotch Whiskies that have been distilled at more than one distillery.
- Blended Grain Scotch Whisky; a blend of two or more Single Grain Scotch Whiskies that have been distilled at more than one distillery.[3]
Note that a blend made up only partially of Scotch Whisky cannot be called Scotch Whisky. Every Scotch Whisky must, on all its labelling, bear the category to which it belongs.
Strict rules also exist regarding the mention of any geographical indicators in the labelling of Scotch Whisky, such as distillery, locality and regional names. The name of a distillery, for instance, cannot be used in the labelling, packaging, advertising or promotion of a Scotch Whisky that has not been wholly distilled at that distillery.[4] Any presentation of Scotch Whisky which would likely create confusion for the public either regarding the distillery origin, or the distiller’s identity, is prohibited.[5]
Scotch Whisky producers may add to the labelling of their whisky the mention of the geographical area of origin, but only if it has been wholly distilled in the said area. There are five traditional - and officially protected - localities and regional names which are geographically delimited in the SWR: i.e. Lowland, Highland, Speyside, Campbeltown and Islay.[6] These are not mandatory to use, nor exhaustive and can be replaced by a more specific geographical indicator, if relevant: for instance, if a whisky has been wholly distilled at a distillery on the island of Barra, it could be described as a “Barra Single Malt Scotch Whisky”, and not simply as a “Highland Single Malt Scotch Whisky” (the Outer Hebrides being included in the Highland whisky region). If mentioned, the locality or regional name must be placed before the category description, for instance: “Islay Single Malt Scotch Whisky”.
In the case of a blended Scotch Whisky the rules are the same: if all the blended components have been individually distilled on Islay, for instance, it can be called an “Islay Blended Malt Scotch Whisky”. However, in the case of a blend made of Scotch Whiskies originating from different geographical areas, if at all mentioned, then all the relevant localities or regions must be specified in an additional description; for instance, a “Blend of Islay and Speyside malts”.[7]
Scotch Whisky and the “gold standard” of GI protection in the UK
In addition to these domestic rules, the name Scotch Whisky benefits in the UK from a specific type of Intellectual Property (IP) protection, as it is recognised as a Geographical Indication (GI). As seen previously, this branch of IP law protects the name of products whose unique attributes derive from their geographical origin.[8]
Ensuring the integrity of the GI product is the Product Specification which lists all the requirements that a producer needs to follow to be able to use the GI name on the labelling and promotion of their product. In the case of Scotch Whisky, its specification mainly repeats the definition found in domestic law, as seen above.[9]
The rules applicable to the protection of the GI Scotch Whisky in the UK can be found today in Regulation (EU) No. 2019/787 of 17 April 2019 in its “retained” version since Brexit.[10] In its Article 21, the Regulation provides for an extensive scope of protection which covers:
- Any direct or indirect commercial use of a GI name for a product other than the one covered by the registration.
- Any misuse, imitation or evocation, even if the true origin of the product, or service, is indicated or accompanied by expressions such as “style”, “type”, “method”, etc.
- Any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, liable to convey a false impression as to the origin of the product.
- Any other practice liable to mislead the consumer as to the true origin of the product.
This type of protection goes further than that offered by trade mark law. Firstly, GI protection rules apply to products be they comparable or not to the GI product and to services. Furthermore, contrary to trade mark law, GI law does not stop at prohibiting the use of names identical or similar to the GI name. It also prevents marketing practices that would evoke the GI (name or product), that is even by intellectual association, using verbal or figurative signs. For instance, in the case of Scotch Whisky, a (non-Scotch) whisky whose bottling would bear a bagpipe, or a tartan pattern, could be judged as an evocation of Scotch Whisky and would therefore be prohibited. In the same way, the use of names reminiscent of Scotland, such as “loch” or “glen”, can be considered an evocation of Scotch Whisky.[11]
Going even further, European case law pre-dating IP Completion Day (31 December 2020), and therefore still applicable in the UK despite Brexit, has also established that the visual appearance of a product can constitute an evocation of a GI in case there is reproduction of a “baseline characteristic [particularly] distinctive of that product”.[12] What, if anything, would be this “baseline characteristic” for Scotch Whisky has not yet been determined.
In any case, the scope of protection from which Scotch Whisky benefits remains considerable in the UK, especially if one considers that any UK trade mark registration is examined against the UK GI register and that a mark too close to a protected GI will automatically be refused.[13]
In addition to the UK, Scotch Whisky is recognised as a GI in over 85 other jurisdictions, including the EU. It is also sometimes protected in other ways through Certification Trademarks (e.g. in the US and Australia) or Collective Trade Marks (e.g. in Myanmar), for instance, or else through ad hoc domestic legislation in some countries. [14] Scotch Whisky protection is enforced worldwide by the Legal Team of the Scotch Whisky Association (SWA), a trade organisation whose mission is, among others, to watch over the integrity of the ”brand” Scotch Whisky.[15]
Conclusion
To conclude, the integrity of Scotch Whisky is supported by a strong legal apparatus in the UK. Chief among this is undoubtedly the Geographical Indication (GI) “gold standard” of protection inherited from EU law and case law and which prevents unwanted and parasitic use of the name “Scotch Whisky”, even beyond the whisky market itself.
This results in rules tricky to navigate when it comes to producing, selling and advertising whisky in the UK but also, given the extent of its protection worldwide, in most markets abroad.
Beyond whisky producers and retailers, the power of the GI Scotch Whisky should not be underestimated either. Indeed, its scope of protection may extend to products non-comparable but also to services whenever there exists a likelihood of misleading association with the emblematic Scottish product.
Author: Alix de La Motte-Broöns
Further advice
For further advice, please contact the trade marks team at Hindles.
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[1] Access the Scotch Whisky Regulations (2009) here: Scotch Whisky Regulations (2009)
[2] See the SWR, 3(1).
[3] See the SWR, 3(2).
[4] See the SWR, 9(1).
[5] See the SWR, 9(4-5).
[6] See the SWR, 10.
[7] For more details on the labelling requirements applicable to locality and geographical names, see the following guide made by the Scotch Whisky Association (SWA): Guidance for Bottlers and Producers_2025.
[8] Of Trade Marks, geographical origin and Geographical Indications - Hindles.
[9] See here: Scotch Whisky product specification (2019).
[10] See here: Regulation (EU) 2019/787 of 17 April 2019 (as Retained EU Law) Regulation 2019/787 of 17 April 2019 (Retained EU Law version).
[11] CJUE, Scotch Whisky Association v. Michael Klotz, 7 June 2018, C-44/17.
[12] CJUE, Syndicat interprofessionnel de défense du fromage Morbier v Société Fromagère du Livradois SAS, 17 December 2020, C-490-19 [par.40].
[13] Fore more details on this, see our article on this topic: Of Trade Marks, geographical origin and Geographical Indications - Hindles.
[14] For more details on this, see: Scotch Whisky Association - Interactive map of worldwide protection for SW.
[15] See here the SWA website: Welcome to the Scotch Whisky Association.