In scotching the Scotch Whisky Association's apprehension that Indian whisky 'Peter Scot' could mislead people into believing a Scottish origin for it, the Supreme Court relied greatly on the Scotch connoisseur's ability to differentiate between an original and fake.

The most discernible difference between an Indian whisky and the Scotch whisky is the price, the latter being much more costlier than the 'desi' product.

When an aggrieved party, like the Scotch Whisky Association, makes a complaint about the deception that a product with a similar name could cause, the courts should apply a variety of tests, which included "nature and kind of customers who are likely to buy the goods", the apex court said.

"Thus, when and how a person would likely to be confused is a very relevant consideration," said a bench comprising Justices S B Sinha and Lokeshwar Singh Panta. The bench set aside concurrent judgments of the Madras high court, which had upheld the Trademark Registrar's decision to de-register the 'Peter Scot' trademark of Khoday India Ltd on the ground that it was deceptively similar to Scotch, that could confuse consumers into buying the Indian product instead of the whisky that is produced only in Scotland.

Justice Sinha, writing the judgment for the bench, said the Trademark Registrar as well as the high court failed to apply the consumer's knowledge test to the issue and hence arrived at a wrong conclusion. It felt that the exorbitant cost of Scotch whisky would naturally attract only the rich who have a knowledge about quality of alcohol they buy.

"Where the class of buyers is quite educated and rich, the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor," the bench said.

Connoisseurs of Scotch whisky would purchase alcoholic beverages by their brand name. If the product was of universal usage value to be purchased by the rich and poor alike, then the tests for 'passing off' as an original product would be different, it added. "But then we are concerned with the class of buyer who is supposed to know the quality and content of Scotch whisky. They are supposed to be aware of the difference of the process of manufacture, the place of manufacture and their origin," the bench ruled.