Khoday India manufactures whisky under the mark ‘Peter Scot’. One Peter Warren, an employee of Khoday, explained that the brand name ‘Peter Scot’ was coined primarily with his father in mind i.e. using his forename, ‘Peter’, and his nationality, ‘Scot’. Another factor was the internationally known British explorer, Captain Scott, and his son Peter Scott, who is widely known as an artist, naturalist and Chairman of the World Wildlife Fund. Although the name ‘Scott’ is spelt with two ‘t’s, it is phonetically the same as ‘Scot’. The Scotch Whisky Association & others initiated legal proceedings against Khoday inter alia for passing off of the mark, Peter Scot. One of their contentions was that some customers were deceived into thinking that Peter Scot brand whisky is also a Scotch whisky. Khodays lost in the High Court, but succeeded in the Supreme Court.

The Supreme Court in its recent judgment elaborately considered the tests applied by courts in England, Australia and USA regarding deceptive similarity of goods. The Court also referred to a passage in Kerly’s classic book on trademark and ruled that “if the goods are expensive and not of a kind usually selected without deliberation and the customers are generally educated persons which are all matters to be considered”. It held that “where the class of buyers is educated and rich, the test to be applied is different where the product would be purchased by the villagers, the illiterate and the poor”. The Court concluded that it was concerned with the class of buyers who are supposed to know the value of money, the quality and content of Scotch whisky and the difference in the process of manufacture, the place of manufacture and their origin. Applying these tests the Court decided in favour of Khodays. One wonders whether ordinary consumers of Scotch whisky, including judges who are not teetotalers, are really aware of these factors. The decisive test is the taste of the beverage. But that alas can be only after the bottle is purchased and its contents are savoured.

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