Steph Innes

Last month, Scotch whisky became the first-ever foreign product to gain Geographical Indication (GI) status in Argentina. Products labelled as Scotch whisky in Argentina will now be required to meet strict standards regarding the quality, method and location of distillation/maturation in order to comply with intellectual property (IP) law.

The granting of this protection is encouraging not only for the Scotch whisky industry, but also underscores the demand for UK food and beverage exports generally, with GI-protected products comprising approximately 25 per cent of all such exports last year. This milestone achievement in Argentina represents a significant commercial opportunity, given that the country is home to a growing consumer base with increasing appreciation for premium spirits. The successful GI application also demonstrates the effectiveness of coordinated industry efforts in securing robust intellectual property protections in key markets.

The protection afforded by GI status will help to combat the sale and distribution of counterfeit whisky products in Argentina. These products have the distinct look and feel of Scotch whisky, misleading consumers as to their authenticity and heritage, as well as undermining the premium reputation of genuine Scotch whisky brands.

Scotch whisky is a GI-protected product in the UK and European Union, as well as several other countries including Canada, India, China and Brazil. In other jurisdictions, it benefits from alternative measures, some of which offer weaker protections.

Within territories that adopt a weaker IP protection regime, protecting the distinctiveness of Scotch whisky can be a significant challenge for producers and distributors. The most obvious threat takes the form of direct imitation, whereby products attempt to copy the branding and labelling of existing Scotch whisky brands.

“Evocation”, on the other hand, presents a more insidious form of challenge, involving sophisticated counterfeiters deliberately attempting to convince unsuspecting consumers that a product is genuine Scotch through the use of subtle descriptors which lead the consumer to mistakenly assume the authenticity and origin of that product. For example, in 2022, the Scotch Whisky Association was successful in stopping the use of ‘Glen’ in the name of a German whisky, given that the term, with its strong ties to the Scottish landscape, was suggestive of a genuine Scotch whisky and therefore misleading to consumers.

However, even in jurisdictions that do recognise GI status, protecting the authenticity of Scotch whisky is not without its challenges. Many industry stakeholders are currently watching with interest the campaign launched by English distillers to obtain GI status for English whisky. Crucially, the proposed English definition of ‘single malt’ requires distillation at a single site but does not go as far as requiring the creation of spirit from malted barley at a single site, therefore differing from the long-established Scotch whisky process. Where the balance will be struck between tradition and innovation remains to be seen.

The challenges of protecting Scotch whisky will continue to grow as the industry continues to evolve across markets and counterfeiters adopt increasingly sophisticated methods. However, the Argentine success demonstrates that strategic legal action can secure meaningful protections. For the time being, GI status remains a powerful means by which to uphold the quality, calibre and rich tradition behind Scotch whisky.

Steph Innes is a partner at Dentons. This article was co-authored by Martha Pownall, an associate at Dentons and first appeared in The Scotsman.