Scotch whisky regions' distinctive flavours could be recognised - Kenneth MacLeod

A dinner party host, frantically searching for something unique to serve, might find inspiration in products labelled “Orkney Beef” and “Orkney Scottish Island Cheddar” both backed by the new UK Geographical Indications scheme logo. All UK producers of products registered with the scheme must use this logo on their labelling and packaging.

Geographical indications (GIs) are protected names producers can use to associate eligible products with a geographical region of origin. Perhaps the most famous is “Champagne”. Closer to home, only Scottish whisky can be “Scotch Whisky”.

Each GI has specific eligibility criteria. For example, Orkney Beef “is derived from cattle born and reared in the Orkney Isles and slaughtered and dressed in Orkney”. Cattle born in Orkney but slaughtered in East Lothian wouldn’t qualify. GIs can range considerably in scale of the region they are connected to. Only pork pies made following a particular recipe within a certain vicinity of Melton Mowbray can use the GI “Melton Mowbray Pork Pie”.

​Only Scotch whisky should be tagged as such under the new UK Geographical Indications scheme – but geographical regions with their own distinct flavours do not have specific labels (stock.adobe.com)

GIs can be valuable IP assets to producers. They demonstrate a level of official recognition that their product is of distinctive quality. This elevates commercial value for producers who want to appeal to customers looking for something apart from the generic.

The question is, does the Scotch Whisky GI indicate, with the right level of specificity, the distinctiveness of the geographical region of origin of each whisky from Scotland

As with wines, beers, and spirits, several Scotch whiskies are associated with a particular region. In Scotland there are at least five, – Campbeltown, Highland, Islay, Lowland and Speyside. Single malt whiskies from each region have a distinct flavour. A consumer who buys a bottle of Scotch whisky bearing the Scotch Whisky GI can be assured this whisky was produced in Scotland. However, can consumers be offered the same assurance, equivalent to that offered by a GI, that the whisky originates from the region it claims?

To some extent it can. Regulation 10(1) of Scotch Whisky Regulations 2009 says a whisky label cannot include the name of a region unless the whisky was distilled there. If a bottle of Scotch whisky has “Speyside” written on it, it was almost certainly distilled in that region.

Kenneth MacLeod is a Senior Solicitor, Anderson Strathern

However, compliance with a regulatory structure alone doesn’t amount to an IP asset in the same way a logo-backed GI does. The average consumer won’t be aware of the UK GI scheme or the Scotch Whisky Regulations. Compliance with the former permits a producer to use a recognisable logo with goodwill attached to it. Compliance with the latter, does not. Since a producer can only use GIs which are registered within the scheme, it would not be lawful to use a “Speyside Scotch Whisky” GI.

New GIs are regularly added to the scheme to reflect consumer habits and recognise distinct types of products. Last year, Single Malt Welsh Whisky was added to the UK GI register. If Welsh Whisky's distinctiveness warrants its own GI, a similar argument could be made for each of the whisky regions to have their own GI.

If producers of Scotch whisky could use GIs bespoke to their region of origin, more specific than simply Scotland, consumers in the market for the distinctiveness of that region, can be offered assurance, more readily marketable than regulatory compliance, that the whisky they’re buying really does come from their preferred region.

Kenneth MacLeod is a Senior Solicitor, Anderson Strathern