Scotch whisky wins legal battle against Australian drinks maker
D’Aquino Bros Pty Ltd - whose Fernbrew brand has now gone into liquidation - claimed its Black Scot whisky was a “Product of Scotland”, but is understood to have been made in Australia. The firm, run by Rex D’Aquino, is based in Orange, in New South Wales, three hours west of Sydney.
The legal decision, made on Friday, effectively bars the firm from using the name “Scotch” or the Scotch Whisky Association’s (SWA) certification mark. Under international “Geographical Indication” (GI) laws, Scotch Whisky - alongside a range of other products including Parma ham and champagne - can only be referred to as such if it is produced in accordance with strict rules and within certain areas
The SWA said it had “achieved what it set out to do” at the Federal Court in Melbourne.
It took legal action after an investigation by the Australian Broadcasting Corporation (ABC) found that fake imported spirits were being sold in stores across the east coast of the country - with 700ml “Scotch” being sold for £14.25 ($26.99) a bottle by the D’Aquino brand. Journalists said they had seen test results from an international laboratory which showed that The Black Scot lacked the “unique chemical compounds” that identify a true Scotch. Requirements include that Scotch only be made from the raw materials of water, cereals and yeast and matured in Scotland for at least three years in oak casks.
The same company had also been found to sell Australian-brewed products marketed as tequila - a spirit which originates in Mexico and is also protected under GI laws.
A spokeswoman for the SWA said: “Having achieved what it set out to do, the Scotch Whisky Association is pleased that its long-running action before the Federal Court in Melbourne has been brought to an end.
She added: “The three brands of fake “Scotch Whisky” which formed the basis for its claims are no longer being bottled or distributed. The main defendant has gone into liquidation and has ceased to trade. Having previously negotiated settlement terms with nine defendants, we have now reached agreement with the remaining two who defended the case and who have agreed to submit to wide-ranging court orders preventing them from infringing our rights in future.”
“The Association has been able to successfully uphold its “Scotch Whisky” trademark to ensure it continues to be the case that only whisky manufactured in Scotland in compliance with a strict definition can be sold under that name in Australia.”
Globally, more than 4,000 different types of foods and drinks benefit from the GI regulations, which are designed to preserve the methods, skills and regional specifications of producing such goods. More than 100 countries officially recognised Scotch as a Scottish product under GI.
Fernbrew — a D’Aquino Group company — pleaded guilty to producing fake Scotch in 2007, after litigation that ran for more than three years.