Milestone Beverage CC and Others v The Scotch Whisky Association and Others (1037/2019) [2020] ZASCA 105; [2020] 4 All SA 335 (SCA); 2021 (2) SA 413 (SCA); 2020 BIP 505 (SCA); [2020] 2 CPLR 447 (SCA) (18 September 2020)

Milestone Beverage CC and Others v The Scotch Whisky Association and Others (1037/2019) [2020] ZASCA 105; [2020] 4 All SA 335 (SCA); 2021 (2) SA 413 (SCA); 2020 BIP 505 (SCA); [2020] 2 CPLR 447 (SCA) (18 September 2020)

The Supreme Court of Appeal held that the appellants' products, Royal Douglas and King Arthur, were marketed and presented in a manner likely to mislead the public into believing they were whisky or Scotch whisky, or had a Scottish origin, despite being vodka-based spirit aperitifs. The get-up, labelling, and use of Scottish indicia, including tartan patterns, crests, and evocative names, were calculated to create a false impression and unlawfully appropriate the reputation of genuine Scotch whisky. The products did not meet the statutory requirements for whisky under the Liquor Products Act, and the representation of alcohol content was also found to be false. The court found that such...

Citation
[2020] ZASCA 105
Parties
Appellant: Milestone Beverage CC; Appellant: The Trustees for the Time Being of the T and S Haupt Family Trust; Appellant: Sean Peter Haupt; Respondent: The Scotch Whisky Association; Respondent: Chivas Brothers Ltd; Respondent: Chivas Holdings (IP) Ltd; Respondent: Pernod Ricard South Africa (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 September 2020
Case Number
1037/2019
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including those of two counsel. The order of the court below is replaced with a comprehensive interdict restraining the appellants from further unlawful conduct.
Judges
Ponnan, Makgoka, Schippers, Sutherland, Poyo-Dlwati
Legal Topics
Unlawful Competition, Trade Dress, Misrepresentation, Liquor Products Act, Passing Off, False Description
Commercial and Corporate Land and Property Unlawful Competition Trade Dress Misrepresentation Liquor Products Act Passing Off False Description

Case Brief

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Parties

Milestone Beverage CC

Appellant

The Trustees for the Time Being of the T and S Haupt Family Trust

Appellant

Sean Peter Haupt

Appellant

The Scotch Whisky Association

Respondent

Chivas Brothers Ltd

Respondent

Chivas Holdings (IP) Ltd

Respondent

Pernod Ricard South Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the appellants misrepresented their products as whisky or Scotch whisky, or as having Scottish origin, in contravention of the Liquor Products Act.
  2. 2 Whether the get-up and labelling of the products created a likelihood of confusion among the public as to the nature and origin of the products.
  3. 3 Whether the respondents were entitled to interdictory relief for unlawful competition and statutory contraventions.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants' products, Royal Douglas and King Arthur, were marketed and presented in a manner likely to mislead the public into believing they were whisky or Scotch whisky, or had a Scottish origin, despite being vodka-based spirit aperitifs. The get-up, labelling, and use of Scottish indicia, including tartan patterns, crests, and evocative names, were calculated to create a false impression and unlawfully appropriate the reputation of genuine Scotch whisky. The products did not meet the statutory requirements for whisky under the Liquor Products Act, and the representation of alcohol content was also found to be false. The court found that such...

Court Disposition

Appeal dismissed with costs, including those of two counsel. The order of the court below is replaced with a comprehensive interdict restraining the appellants from further unlawful conduct.

Orders

  • The appeal is dismissed with costs, including those of two counsel.
  • The respondents are interdicted and restrained from selling, offering for sale, promoting, marketing, or distributing products with the offending trade dress or labels evocative of whisky or Scottish origin.