Milestone Beverage CC and Others v The Scotch Whisky Association and Others

The appellants, Milestone Beverage CC, the trustees of the T and S Haupt Family Trust, and Sean Peter Haupt, manufactured and distributed alcoholic beverages branded as ‘Royal Douglas’ and ‘King Arthur’. Although the products were not whisky and had no connection to Scotland, they were marketed using get-up, labels, names, tartan patterns, and descriptors such as ‘whisky flavoured’, ‘double distilled’, and alcohol percentages evocative of Scotch whisky. Despite repeated undertakings to amend labels and cease misleading representations following complaints by the respondents (including the Scotch Whisky Association and related entities), the appellants continued marketing the products in a manner suggesting they were whisky or Scotch whisky. The respondents instituted application proceedings alleging unlawful competition and contraventions of the Liquor Products Act 60 of 1989. The High Court granted extensive interdictory relief, which the appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The order of the High Court was replaced with a comprehensive interdict restraining the appellants from using offending trade dress, whisky-related descriptors, or Scottish indicia; from misrepresenting alcohol content or product nature; and from trading unlawfully. The appellants were ordered to destroy offending products and materials, failing which seizure and destruction by the sheriff or the State was authorised. Costs were awarded against the appellants jointly and severally.

This judgment is a leading South African authority on unlawful competition through false misrepresentation of product character and origin, particularly in relation to Scotch whisky. It affirms strong protection for geographically distinctive products and their goodwill, clarifies the test based on consumer perception, and underscores the interaction between common-law unlawful competition and statutory regulation under the Liquor Products Act. The case reinforces that traders may not exploit the reputation of established products through evocative branding even without classic passing off.