'Tale Of Two Countries': Delhi High Court Says Peru, Chile Both Linked To PISCO, Refuses Exclusive GI To Peru

The Delhi High Court on Wednesday affirmed that Peru cannot claim the exclusive, standalone “PISCO” geographical indication (GI) for its national spirit in India, holding that the name is historically associated with alcoholic beverages produced in both Peru and Chile and granting Peru sole rights would lead to consumer confusion.

Calling the dispute a “Tale of Two Countries,” a Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla was dealing with an appeal filed by the Embassy of Peru against a single-judge ruling that required the spirit to be registered in India only as “PERUVIAN PISCO” instead of the standalone term “PISCO”.

Upholding the earlier decision, the Bench said the Geographical Indications of Goods (Registration and Protection) Act, 1999 prohibits registration of a GI if its use is likely to deceive or confuse consumers, and the material on record showed that the name “Pisco” has long been used internationally for spirits produced in both Peru and Chile.

“Chilean Pisco is, therefore, a known alcoholic beverage since long, worldwide. The use, by Peru, of 'Pisco' as a GI, for an alcoholic beverage would, therefore, manifestly result in confusion among the consuming public. A 'GI' is, per definition, an indication which identifies goods as originating, or manufactured, in the country, region, locality or territory concerned,” the court observed.

Peru had applied for registration of the GI “PISCO” under the 1999 Act, claiming exclusive rights over the name. The application was opposed by the Chilean industry body Asociacion De Productores De Pisco A.G. (ADP).

An Assistant Registrar of Geographical Indications had granted registration only for “PERUVIAN PISCO” in order to avoid confusion. However, the Intellectual Property Appellate Board later allowed Peru's claim to the standalone term. That decision was set aside by a Single Judge of the High Court, who restored the requirement of using the geographical prefix, leading Peru to file the present appeal.

Before the court, Peru argued that the word “Pisco” originates from the Quechua term “Pisku” meaning “bird”, and is historically linked to a town and valley in Peru where the spirit has been produced since the 16th century. It relied on historical records, travelogues and maps to claim that the drink is uniquely Peruvian.

Peru also alleged that Chile's use of the name was dishonest, pointing out that a Chilean town was renamed “Pisco Elqui” in 1936 to create a geographical connection with the liquor.

The Chilean association, on the other hand, argued that Pisco has a shared regional history and has been produced in Chile using traditional methods since the 19th century.

It said the name is derived from “Pisquillos,” clay pitchers used to store the wine, and pointed out that Chile's rights in the name are recognised in several international trade agreements. Granting Peru exclusive rights, it contended, would ignore decades of legitimate global use by Chilean producers.

Rejecting Peru's allegation of misappropriation, the Bench said there was no reliable evidence to show that Chile had dishonestly adopted the name.

“We are of the view that the allegation of misappropriation, or dishonesty, on the part of Chile, in adopting the name 'Pisco' for the alcoholic beverage which it admittedly manufactures and distils, is completely bereft of credible supportive evidence. Arriving at such a finding, as a ground to decide GI rights of Peru vis-à-vis Chile would, to our mind, be grossly arbitrary,” the court said.

The court held that even if Peru satisfied the requirements for registration of a geographical indication, the statutory bar under Section 9 of the Act was absolute where the indication is likely to cause confusion.

Since both Peruvian and Chilean spirits are known worldwide as “Pisco”, granting Peru exclusive use of the term would mislead consumers.

The bench also rejected Peru's argument that international free trade agreements recognising Chilean Pisco were irrelevant.

“We unhesitatingly reject Peru's contention that FTAs are of no consequence. FTAs are solemn commercial agreements between nations, and manifest international recognition of the fact that the alcoholic beverage manufactured by Chile is known, not only within, but also outside Chile, as Pisco,” the court observed.

The court further held that the Registrar of Geographical Indications has the power under the Act to accept a GI application subject to conditions or limitations, and requiring the prefix “PERUVIAN” was a reasonable exercise of that power to ensure that the indication correctly reflects the origin of the product and avoids confusion.

The Division Bench noted that the Single Judge had referred to the concept of homonymous geographical indications, but held that the issue could be decided on the basis of Section 9 of the Act itself, as grant of the standalone term “Pisco” would lead to confusion among consumers.

Holding that Peru is not entitled to exclusive registration of “PISCO” in India, the court dismissed the appeal.