The Scotch Trooper branded Virginia-Highland whisky draws the ire and a lawsuit from Scotland’s Scotch Whisky Association
Scotch, Champagne, Tequila, Cognac don’t just enjoy certification mark status, they’re also tied to specific federal regulations for standards of identity. For instance, under the standards of identity for distilled spirits found at 27 C.F.R. 5.22:
- “Cognac”, or “Cognac (grape) brandy”, is grape brandy distilled in the Cognac region of France, which is entitled to be so designated by the laws and regulations of the French Government.
- “Tequila” is an alcoholic distillate from a fermented mash derived principally from the Agave Tequilana Weber (“blue” variety), with or without additional fermentable substances, distilled in such a manner that the distillate possesses the taste, aroma, and characteristics generally attributed to Tequila and bottled at not less than 80° proof, and also includes mixtures solely of such distillates. Tequila is a distinctive product of Mexico, manufactured in Mexico in compliance with the laws of Mexico regulating the manufacture of Tequila for consumption in that country.
- “Scotch whisky” is whisky which is a distinctive product of Scotland, manufactured in Scotland in compliance with the laws of the United Kingdom regulating the manufacture of Scotch whisky for consumption in the United Kingdom: Provided, That if such product is a mixture of whiskies, such mixture is “blended Scotch whisky” (Scotch whisky – a blend).
- The words “Scotch”, “Scots” “Highland”, or “Highlands” and similar words connoting, indicating, or commonly associated with Scotland, shall not be used to designate any product not wholly produced in Scotland.
That last bit about Scotch and the words “Highland” has led to a unique dispute over a whisky series produced by Virginia Distillery Co. called “Virginia-Highland Whisky” described as whisky “from Scotland married with Virginia Whisky distilled from malt mash.” The “Scotch Trooper Cask” is one of these whiskies, VA Distillery’s team-up with the “Scotch Trooper” of Instagram fame, and there are different barrel finishes produced for other whiskies in the series such as Port Cask Finished, Rum Cask Finished, and Chardonnay Cask Finished versions of Virginia-Highland Whisky.
Writing about the whisky back in 2016, the Whiskey Wash Blog wrote that the distillery “has created what is essentially their own take on an independent bottling of a Highland whisky. The distillery brings the spirit over from Scotland as a finished six year old whisky. It is one main distillery they get the whisky from and, because of export rules, a very small amount of another distillery’s spirit is added to move it from the single malt designation to the malt designation.”
The use of the word “Highland” and the partnership with the “Scotch Trooper” leading to his stormtrooper mark on bottles which results in the word “Scotch” as part of “Scotch Trooper” appearing on the bottle:
attracted the attention of the Scotch Whisky Association. They’re the Scotch police and maintain their own criteria and standards for what can be called Scotch Whisky. And they’ve sued the Virginia Distillery Co.
The complaint [link to complaint] asserts that Virginia Distillery’s labelling under the “Virginia-Highland Whisky” amounts to deception arguing the terms “Highland” and spelling “Whisky” without the “e” falsely indicate to the public that the whiskey is “Scotch.” They also allege that the creation of a “Scotch Trooper Cask” version is intended to create a false association between between the distillery’s products and what the Association calls Scotch Whisky. You can see the COLA for the Scotch Trooper whisky here. You’ll note that like many of the other bottles, this one says “WHISKY FROM SCOTLAND MARRIED WITH VIRGINIA WHISKY DISTILLED FROM MALT MASH.”
Alleging Lanham Act counts for False Advertising and Unfair Competition, state law deceptive trade practices, and common law unfair competition, the Scotch Police assert that the little Virginia Distiller Co. should be stopped from using the words “Highland” or the work “Scotch” on the bottles and should have to recall all the outstanding bottles.
Arguably, the uses are distinct enough (note the hyphen between Virginia and Highland and the fact that Scotch Trooper seems more an infringement on Star Wars than “Scotch”) that a meritorious argument that no real consumer deception exists – NOTE also the fact that the TTB approved the labels in the class “whisky” and not “Scotch Whisky” so someone reviewed these and passed on those uses for that category. As with many of these suits, the real question is likely whether the sued distillery can pay to defend itself.