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July 9, 2019 – When is a “Highland” whisky not a “Highland” whisky? That’s the crux of a federal lawsuit filed Monday by the Scotch Whisky Association against the Virginia Distillery Company over its “Virginia-Highland Whisky.” It’s the latest legal battle for the Edinburgh-based trade association over the use of words traditionally associated with Scotch Whisky on whiskies produced outside of Scotland – a battle the association has been fighting vigorously for years.
In this case, “Virginia-Highland Whisky” is a blend of malt whiskies imported from Scotland with American single malt whisky distilled at Virginia Distillery Company’s own facility in Lovingston, Virginia. The SWA’s complaint filed in the U.S. District Court in Wilmington, Delaware argues that both the use of the term “Highland” and the spelling of “Whisky” falsely give consumers the impression that “defendant’s product is Scotch Whisky when it is not.”
Virginia Distillery Company’s web site clearly describes the various expressions of “Virginia-Highland Whisky” as “marrying whisky from Scotland with whisky made on-site in Virginia.” While previous court rulings have not declared Tax & Trade Bureau label approvals to be a “safe harbor” from lawsuits, the whiskies have received label approvals from the agency required before they can be legally sold in the United States.
The company was founded in 2011 by the late Dr. George Moore, and continues to be run by his family. CEO Gareth Moore declined an interview request on the advice of legal counsel, but issued a statement pledging to fight the lawsuit.
“We are confident this complaint will be resolved, and we will be responding through the court system. We stand behind our product and its labeling. Our independent distillery launched the Virginia-Highland Whisky series over three years ago. Our production process pays tribute to both old world and new world techniques while taking advantage of our location and the climate provided by Virginia’s Blue Ridge Mountains. Our label clearly indicates the source of our whisky, stating “Whisky from Scotland, Married with Virginia Whisky”, and we have always been upfront in descriptions to our customers. Our team invested countless hours and took the necessary and appropriate steps to design labeling for the series in conjunction with the federal TTB regulations and an additional inquiry from the Scotch Whisky Association. We’ve always been extremely transparent about our production process – from our labeling to the product’s marketing. As the largest independently owned American Single Malt distillery in the U.S. with the capacity to make over 120,000 9L cases of ultra-premium American Single Malt whiskey per year, we’re proud of our role in growing and championing the American Single Malt category. We plan to continue our expansion of the Virginia-Highland Whisky series line across the U.S. and look forward to the upcoming release of our Courage & Conviction American Single Malt line.”
In addition, the SWA accuses Virginia Distillery Company of violating U.S. regulations banning the use of words associated with Scotland. In a statement, the association called its legal strategy vital for protecting the intellectual property of Scotch Whisky.
“In this instance, we believe that Virginia Distillery’s products are being passed off as Scotch Whisky, particular on account of their use of the term ‘Highland’ which is reserved exclusively for Scotch Whisky under US Federal Regulations. These proceedings were not taken lightly, but only after more than 12 months of attempts by the SWA to resolve this issue privately with the company in question. The Association would still welcome a resolution of the matter without the need for Federal Court involvement.”
The complaint also cites a partnership between the distillery and “Scotch Trooper” photographer Brett Ferencz for a “Scotch Trooper Cask” release last December as further proof of the intention to create a “false association between its products and Scotch Whisky. Ferencz’s Instagram feed largely focuses on his passion for “Star Wars,” and often feature photos of action figures from the series interacting with whisky bottles or glasses. He is not named as a party in the lawsuit.
The Scotch Whisky Association’s legal team has a successful track record over the last 15 years in lawsuits similar to this filed in courts around the world. Its only significant loss came in 2009, when Canada’s Supreme Court rejected the SWA’s appeal of lower court rulings allowing Nova Scotia’s Glenora Distillers to continue using the “Glen Breton” brand name for its Canadian single malt whisky. The distillery released a “Battle of the Glens” whisky in 2010 to celebrate the ruling.
No date has been set for a hearing in the case, and Virginia Distillery Company has 21 days to file its response to the SWA’s complaint with the court.
This story will be updated as necessary.
Editor’s note: We have provided a link to view the SWA’s complaint at the WhiskyCast web site. As in all civil lawsuits, court filings only present one party’s side in a dispute and should not be considered as proven facts until argued and ruled upon in court. We will update this story with a link to the defendant’s response once it is filed with the court.