Braveheart whisky battle looms

Local drinks maker draws swords with watchdog, Chivas Regal

COME August 26, Supreme Court of Appeal (SCA) judges will hear a case requiring them to rule if a local alcohol producer can pass off its products as “whisky flavoured” when it has no links to Scotland.

The producer of the King Arthur and Royal Douglas alcoholic beverages identified as whisky-flavoured spirit aperitifs, is dragging whisky watchdog, the Scotch Whisky Association, and the manufacturers of Chivas Regal to the SCA.

Milestone Beverage, the King Arthur and Royal Douglas producer, sought to convince the Bloemfontein-based court to set aside a 2019 ruling that favoured the Scotch Whisky Association and Chivas.

The association was the de facto custodian of South Africa’s imports-dominated billion-rand local whisky market. Its members were mostly the well-known whisky brands said to import nearly R2 billion worth of whisky into the country each year.

Judge Elizabeth Kubushi’s ruling in the North Gauteng High Court, Pretoria, interdicted Milestone Beverage from passing off its products as whisky.

The judge found that the company attempted to disguise the sale and marketing of their two products as being related to Scotch whisky.

“They have as such falsely misrepresented the relevant products as those of (the Scotch Whisky Association and Chivas) and by so doing have traded and continue to trade off the reputation of Scotch whisky or whisky through the use of the name whisky-flavoured spirit aperitif.

“They should be interdicted from continuing with this conduct,” said Judge Kubushi.

The association’s complaint was that King Arthur and Royal Douglas were being falsely represented as whisky, whisky-flavoured and also as Scotch whisky.

This was when in fact they had no relation either to whisky, Scotland or the UK.

The sale of King Arthur and Royal Douglas as whiskies amounted to misrepresentation and therefore unlawful competition, argued the association.

Milestone Beverage maintained before Judge Kubushi that its products were whisky flavoured, and that it did not attempt to pass them off as whisky.

The producer argued that a reasonable person would be able to differentiate between whisky and a whisky-flavoured beverage.

Judge Kubushi shot down these arguments.

“Their evidence that the flavouring they purchase from Creative Flavours International is a whisky flavour, without establishing how the whisky in the flavouring has been acquired, does not assist their case,” said the judge.

Milestone Beverage’s arguments are now going to be tested at the SCA.

The SCA stated in its case notice that it would hear arguments on “whether the get-up of the first appellant’s King Arthur and Royal Douglas products misled potential customers about the nature, origin or quality of the aforesaid products”.

“The respondents relied on a claim of unlawful competition based on the alleged misrepresentation and breach of various statutory provisions,” the appeals court said.