Kenya’s Africa Spirits Limited (ASL) has won a trademark and passing-off case against the Scotch Whisky Association (SWA) over its ‘Glen Rock’ whisky brand.
SWA, which represents more than 90 whisky producers across the UK, Scotland and other parts of the world, had sought to stop ASL from manufacturing and selling its Glen Rock No. 1 whisky brand, arguing that its packaging and advertising were designed to confuse and make Kenyan consumers believe the product was Scottish-made.
Passing off occurs when one business represents its goods or services as belonging to, or being connected with, another famous business or brand, potentially allowing it to benefit from the latter’s goodwill and popularity.
The association, whose members include several companies such as Diageo that sell their products in Kenya, told the High Court in Milimani, Nairobi that it discovered in October 2017 that ASL was making and distributing Glen Rock No. 1 whisky.
It argued that the name bore similarities to brands sold by its members in Kenya, including Glenmorangie, Glenlivet and Glenkinchie, and accused the Kenyan firm of deliberately creating the impression that its whisky was from Scotland.
The High Court, however, ruled that Glen Rock had demonstrated it had built goodwill around its brand in Kenya, while SWA and member Glenkinchie’s claim of substantial goodwill in the local market was not adequately supported by evidence.
The judge noted that although Glenkinchie claimed to have spent Sh1.3 billion on advertising, it produced no receipts, audited accounts, delivery notes, import documents or other records to substantiate the figure.
It also failed to provide promotional materials, billboard photographs or client lists to demonstrate its alleged market presence. In contrast, evidence showed GlenRock had undertaken extensive marketing through billboards, banners and social media, supporting its claim of independently building goodwill.
The court also rejected the claim that GlenRock had misrepresented itself as Glenkinchie or was likely to confuse consumers. The judge noted that the GlenRock label clearly states that it is “Blended & bottled by Africa Spirits Limited” and does not claim Scottish origin.
She also noted that “Glen” is an ordinary English/Scottish-Gaelic word used by numerous unrelated brands, as well as pointing to the differences in the bottles, with GlenRock using a green, rectangular or tapered bottle compared with Glenkinchie’s clear, cylindrical bottle.
SWA had claimed that ASL had calculatedly designed the product to deceive Kenyan consumers into associating it with Scotland and, in turn, ride on the reputation and popularity of Scotch whisky.
The SWA argued that the name ‘Glen Rock’, together with the whisky’s labeling and advertising, was well calculated to mislead consumers about its origin.
It characterised the conduct as unfair competition, false trade description, passing off and extended passing off, a form of misrepresentation in which a trader falsely suggests that its product possesses a recognised quality, composition or geographical origin associated with a particular product category.
“‘Glen’ is strongly connected with Scotland, as it is the anglicised spelling of the Scottish Gaelic word ‘Gleann’/’Ghlinne,’ meaning a narrow valley,” SWA told the High Court.
The association further argued that many Scotch whisky distilleries are located in, and named after, Scottish glens, while numerous Scotch whisky brands incorporate ‘Glen’ to emphasise their Scottish origin. The word also appears in the names of various Scotch whisky companies, it said.
SWA added that ‘Glen’ is a Scottish first name and surname, while the use of tartan on the Glen Rock label reinforced the impression of Scottish origin. The deer and castle imagery on the bottle, it said, was also consistent with designs commonly associated with Scotch whisky labels and historical Scottish castles.
The association also took issue with what it described as deliberate failure by Africa Spirits to disclose the manufacturer or country of origin on the Glen Rock label, arguing that this was calculated to deceive consumers into believing the whisky was made in Scotland.
It further contended that the designation ‘Glen Rock Whisky No. 1’ implied that the product met Scotch whisky industry standards, amounting to a false trade description.
According to SWA, the continued availability of Glen Rock in Kenya could harm its members’ businesses by confusing consumers, diluting and denigrating the integrity of Scottish geographical indications, reducing sales of genuine Scotch whisky and discouraging consumers who might unwittingly purchase the Kenyan product. It also argued that the alleged conduct threatened irreparable damage to the goodwill attached to Scotch whisky and allowed Africa Spirits to unlawfully benefit from that reputation.
In its view, SWA claimed that Glen Rock would lower sales of its members’ exports to Kenya, which totaled over Euro 5.6 million as of 2016 (Sh630 million at the then exchange rate), and injure its members’ advertising spend of Sh1.3 billion in the Kenyan market.
ASL, however, painted an entirely different picture in its defence. The Kenyan firm maintained that Glen Rock Whisky No. 1 is wholly Kenyan and had no connection to Scotland. The company said the whisky was distilled, blended and packaged in Kenya using local resources, in keeping with ‘manufacture in Kenya, buy Kenya, build Kenya’ ethos.
According to the company, which was placed under administration in June 2025, the name of its whisky was inspired by the origins of its entrepreneurs, who hail from the Mount Kenya region, where valleys are a prominent geographical feature.
If anything, it argued, ‘Glen’ was simply an ordinary English word derived from Gaelic, used in reference to the valleys of Mount Kenya. ‘Rock’, meanwhile, was said to refer to kenyte, a rare fine-grained rock found in only two places in the world, Mount Kenya and Antarctica, as documented by geologist J.W. Gregory in 1900.
The company said its trade dress incorporated the Maasai shuka or kikoi chequered pattern as an expression of Kenyan Maasai cultural identity, rather than Scottish tartan.
The castle imagery, it argued, was inspired by naturally curved caves along Mount Kenya’s Baguret route, known as the ‘Highland Castles’, a camping site for local mountaineers.
“The defendant (Africa Spirits) also notes other non-Scottish castles in Kenya such as Lord Egerton Castle, Lord Grogan Castle, Taafaria Castle, and that ‘Castle’ is a real place name in Thika, Central Kenya, near the Defendant’s distillery,” the judge said in a decision.
“The defendant adds that the deer image is said to be inspired by wildlife resting in the Highland Castle caves, and the defendant’s colour scheme of red, blue, and green is tied to Maasai beadwork/shuka symbolism, not Scottish tartan.”
Africa Spirits consequently denied ever passing off Glen Rock Whisky No. 1 as Scotch whisky or representing it as originating from Scotland, denying the suggestion that it had deliberately concealed the manufacturer or country of origin.
The company said Kenyan consumers were sophisticated enough to distinguish between local whisky and Scotch. “Kenyan whisky consumers are ‘persons of high discernment’ unlikely to be confused. Only morons in a hurry would confuse the products,” Africa Spirits argued.
The manufacturer also pointed to the physical design of its bottle as evidence that consumers would not mistake it for a typical Scotch whisky product.
Its bottle, Africa Spirits said, is rectangular with softened corners, rather than the generally round shape associated with Scotch bottles. It also carries an embossed lion on the shoulders, a symbol Africa Spirits said was distinctly Kenyan as the lion is one of Kenya’s Big Five, and also appears on Kenyan currency and the national coat of arms, and has cultural significance among the Maasai, including as a rite-of-passage symbol.
It said Kenyan consumers had encountered numerous liquor brands using the prefix and were, therefore, unlikely to assume that every product bearing the word was Scottish.
“The defendant contends that the Kenyan public has grown accustomed to many ‘Glen’-prefixed liquor brands and is not confused by them and that no one can claim exclusive rights over ‘Glen’,” the company argued. “‘Glen’ is an ordinary English dictionary word, and it is not a registered trademark of the Plaintiff (Scotch Whisky Association) anywhere in the world, and the Plaintiffs hold no intellectual property rights over it.”
To emphasise this point, Africa Spirits cited several non-Scottish businesses and products using the word, including Glen & Company, a US architecture firm; Glen Line, a Glasgow shipping company; Glenora Distillers and Glen Breton in Canada; Glendalough in Ireland; Glen Oaks in Australia; Glen Kellan in the Isle of Man; and Glann Armor in France.
In a rejoinder, SWA dismissed the explanations as afterthoughts crafted to conceal what they described as a deceptive intention.
SWA wondered why Africa Spirits had chosen a word of European origin rather than a Swahili, African or distinctly Kenyan name for its whisky. SWA maintained that with several whisky brands bearing the ‘Glen’ prefix already available in the Kenyan market, Africa Spirits had studied the market in search of a product that would be easy to sell.
