Lawyer of the Month: Alan Park
At a cursory glance, the minimum legal requirements for producing Scotch Whisky appear to be deceptively simple. The spirit can only be made in Scotland from just three natural ingredients – water, yeast and cereals – and must be matured in oak casks for a minimum of three years.
However, it’s an outstandingly successful recipe for an industry that saw global exports hit a record £6 billion in 2022 and that outsells Japanese, American, Canadian and Irish competition combined, which is clearly a sobering thought. But, as Alan Park, director of legal affairs at the Scotch Whisky Association (SWA) since 2016 points out, that while imitation may be the sincerest form of flattery, at any given time there are some 60 court cases around the world contesting counterfeit Scotch brands.
Last year, for example, the SWA won a nine-year-long legal case against German distiller Waldhorn over its use of the word “Glen” after an earlier court ruling was upheld by the Hanseatic Higher Regional Court in Hamburg which ruled that the distillery had to change the name of the whisky as it breached the Geographical Indication (GI) of Scotch – and the inclusion of the word “Glen” might imply to consumers that it was produced in Scotland.
Glen Buchenbach duly joined the list of proscribed brand names. “Our case against Glen Buchenbach presented clear and compelling evidence to the court that ‘Glen’ is strongly associated with Scotland and Scotch Whisky, and the only reason to use ‘Glen’ for a German whisky is because of its undoubted association with Scotch Whisky,” Mr Park commented on the result.
Intriguingly, his interest in the conservation of unique historical tradition might have taken a totally different course. “I rather fell into the law rather than actively pursuing it as a career,” he says. “I really wanted to be an archaeologist or historian which were among my choices for university but for one reason or another I decided to do a law degree law at the University of Glasgow and particularly enjoyed the public law, political and regulatory side.”
So, moving through criminal defence work and civil cases then becoming a partner in a Glasgow law firm, when the opportunity arose to apply for the role of legal counsel at the SWA in 2003 he saw it as the ideal opportunity to combine an interest in litigation with a product that he loved – plus helping a distinctively Scottish industry.
“We’re involved in an area of work that’s incredibly varied and I think that’s why many of us in the team have stayed in the role for so long because it’s one that never gets stale.” There are five lawyers at the SWA, including Mr Park plus two paralegals. “We generally try to divide the work between Asia Pacific, the Americas, Europe, the Middle East and Africa.”
So, while occupying an office in Edinburgh’s Quartermile may seem somewhat more agreeable than burrowing through a Neolithic trench in Orkney or meticulously measuring a broch in Caithness, he at least has the satisfaction of being a senior custodian of an enjoyably enduring part of the country’s history.
While there have been some distinctly implausible attempts at ‘Scotch’ fabrications, such as the Glen Highland Green Blended Whisky that emanated from Fujian province in south-east China, more familiar, cosmopolitan monikers are often hijacked – or in one case that Mr Park recalls, can-jacked.
“Several years ago, I received a call from a German businessman who had been travelling in the Middle East and had come across a can of what was labelled as ‘blended Scotch Whisky’ while combining the names of two prestigious legitimate brands.
“Unsurprisingly, he told me that he thought it was it was awful; we had it chemically analysed by the Scotch Whisky’s Research Institute, the industry’s research and technology organisation, which revealed that the mis-titled product was essentially just flavoured vodka.”
A year-long investigation then revealed that it had been transported through Turkey and was also on sale in Hamburg. “We gained information from customs authorities that allowed us to trace its production to Austria and a raid on the facility garnered enough evidence to take civil action against the company in question which went all the way to the Austrian Supreme Court – though ultimately that took seven years.”
These cases are all, Mr Park concedes, part of the Scotch Whisky industry playing what he describes as a “long-term game” and while distillers will act if their own trademarks are infringed, it remains the job of the SWA’s legal team to ensure that Scotch’s Geographical Indication (GI) status is protected.
As well as litigation against counterfeit Scotch brands, which tends to go through peaks and troughs (for example, over a five-year period the SWA had to take 15 federal court actions in New South Wales and Victoria involving 40 separate brands) Mr Park and his team are also constantly engaged in trademark monitoring – what he describes as the pre-emptive strike against the sales of such products.
“Geographical indications are rights associated with food and drink of a particular origin because of the reputations and characteristics associated with that place. And GIs such as Scotch Whisky get a very high level of protection in the UK and the EU.
“The countries where we have the highest number of trademark applications to review, and if necessary, oppose are the United States, China and India,” he adds.
Some 60 per cent of Mr Park’s team’s work involves pursuing such actions, with additional regulatory work and offering advice to the association’s whisky-producer members – but the long-term game also involves areas such as import tariffs, customs procedures and ensuring that we have an alcohol tax system fit for the 21st century.
“There are five lawyers at the SWA, including me and my team and two paralegals. And we generally try and divide the work up between Asia Pacific, Americas and Europe, Middle East Africa,” says Mr Park.
And while he concedes that the industry has the scale and resources to fight its corner across the world, he says the SWA is also active in engaging with the enforcement authorities not only in stressing how Scotch Whisky should be protected by the law, “we often partner with other food and drink interest groups so that their intellectual property rights, which are geographical indications, are properly recognised”.
At home in Stirling, Mr Park has “two great kids” who keep him otherwise occupied in transporting them between swimming, gymnastics, music, scouts and other activities helped by his wife Nicola, who he describes as “calm and wise … probably not surprising in someone who is a yoga teacher”, and as a keen walker he still comes across examples of his continuing interest in history and archaeology.
Otherwise, in a world increasingly impelled by online comments and often dubiously sourced news, Mr Park keeps a low profile. “I don’t have a particular need to have a social media profile,” he says, reasonably pointing out that as part of his role is chasing counterfeiters around the planet it makes sense to be reasonably anonymous to those involved.
“But I basically love doing what I do, which is protecting an amazing industry from unfair competition around the world. It’s a worthwhile task and there is no one else quite like us, as the role is such a specialised one.”