A sense of land and brand

A sense of land and brand

How whisky is connected to its home

Whisky Learning | 02 Oct 2020 | By Chris Middleton

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Scotch and Bourbon designate different types of whisky; they also represent different national origins. Look further and there are recognised regions, like the Highlands and Kentucky; delve deeper still to find famous districts, valleys and streams, down to the ground level where distillery and locality can become brand in its own right.

The French use the term ‘terroir’ to describe the role locale directly plays by influencing an agricultural product, notably wine. Wine’s terroir is the combination of topographical location, hydrology, climate, soil, sunlight, grape variety, viticultural practices, through to oenological techniques used to create wines with a distinctive sensory fingerprint traceable to a place, be it a specific hillside or region.

The international wine industry recognises more than 3,000 distinct wine-growing regions worldwide under protected appellations and registered geographical indications. Think Bordeaux (with grape varieties cabernet sauvignon, and others), Burgundy (pinot noir, gamay), Italy’s Barolo (nebbiolo) and Brunello (sangiovese), Spain’s rioja (tempranillo, and others), etc.

For whisky the species of cereal grain dominates the different whisky styles with American Bourbon (corn and other grains), Scottish malt (malted barley), Irish pot still (unmalted and malted barley) and Canadian whisky (rye and others).

Whisky’s first national and regional styles became conspicuous as the modern industry developed in the late 18th century. In Ireland, the country’s whisky characteristics were impositions from the 1770 Malt Tax, the 1771 Pot Still and 1789 Distillation Acts, forcing distillers to adapt to mash recipes using mostly cheaper unmalted barley, oats and rye and restricted to large pot still capacities. The large city distilleries in Dublin made whisky differently to regional poteens like Donegal’s Inishowen or Cork’s whiskey.

Scotland’s whisky differences were cleaved by geography, regulations and tax differentials between the Lowlands and Highlands. Large Lowland distillers mostly manufactured industrial malt spirit for English rectifiers from the 1780s, using rapid distillation technologies fermented by cheap London porter yeast acting on mash of on low-quality grains, even vegetables.

The government’s 1784 Wash Act demarcated the Highland Line with a licensing system restricting Highland production to small pot stills, mashing mainly the local bere barley over peat fires and fermented on malt and ale yeast strains. When patent stills came into use from the 1830s, the differences became exaggerated between flavoursome Highland malt and silent spirit from the Lowland distilleries’ column stills. At the end of the 19th century, Scotch blenders began aggregating the 150-odd distilleries in Scotland from two into four amorphously geographic flavour regions: Lowland, Highland, Campbeltown and Islay/Islands.

Across the Atlantic, America’s whisky industry was also emerging, distilling spirits from predominantly grain recipes of corn and rye. By the late 1820s, more than half a dozen different regional styles were publicly recognised. From Kentucky came the corn-dominant grain bill of Bourbon, better known then as Western whisky.

Pennsylvania’s earlier recipes of predominantly rye and malt produced the popular and pungent Monongahela rye whisky compared with lighter, often rectified, Maryland and Baltimore style ryes with higher ratios of corn. By the 1850s the middle Tennessee area was popularising the sour mash method and charcoal filtration, with two competing regional styles of Robertson County and Lincoln County whiskies (see Whisky Magazine issue 166); other regional styles included Virginia’s Roanoke rye and Alabama’s Tuscaloosa corn whiskey. In all instances, locality influenced style, and these whiskies commanded a premium due to their appealing flavour characteristics.

Until the mid-19th century, rural distilleries sourced local grain varieties from neighbourhood farms, cultured local yeast strains and, in America, coopered barrels from native forests of white oak. In the second half of the 19th century, whisky was commoditising and ramping up massive scale in manufacturing with grain varieties becoming homogenised and production industrialised. These escalating outputs forced distilleries to source grain from centralised maltsters, specialist yeast providers and independent cooperages supplying barrels in America. British distilleries imported used casks that previously held brandy, rum and fortified wines.

The competitive imperatives of whisky commerce made it so that reputable and popular whisky brands had to obtain trademark protection under new regulations. Trademark laws only emerged in the second half of the 19th century and, aptly, it was Scotland and Kentucky that initiated proceedings in the two most celebrated court cases to establish brand-to-land precedents: in Scotland, Smith’s Glenlivet whisky made at the distillery licensed in 1824; the other Old Crow whiskey, distilled at Glenns Creek, Kentucky since 1840. Old Crow whiskey became the best-selling straight Bourbon in America until Prohibition and The Glenlivet the best-selling malt whisky.

Before Glenlivet, the first Scotch spirit traded by reputation was Forbes’ Ferintosh aqua-vitae-style whisky from Dingwall. After enjoying the influential and protected status for more than a century, the Forbes ceased production in 1787. Presaging the modern age of brand management, the clumsily drafted Copyright Act in 1842 prompted distiller George Smith and his son John to file the Glenlivet name at Stationer’s Hall for commercial protection in 1859.

The Grants placed classified advertisements warning the public and trade about passing off Glenlivet counterfeits, but the Act proved ineffectual. The Glenlivet distillery’s brand reputation started when wholesaler Andrew Usher began taking shipments of ‘the Real Glenlivet’ in the 1830s, agreeing to become their agent in 1844, and later creating Britain’s first commercial whisky brand, Old Vatted Glenlivet whisky in 1853.

Usher advertisements from 1821 indicate they were obtaining illicit ‘Glenlivet whisky’ from the Smiths from 1817 for several decades before the 1823 Excise Act encouraged the Smiths to obtain a distillery license. The 1850s were the birth of Scotch brand marketing and led to numerous trademark infringements as the Glenlivet name and locality represented a sweeter, light-flavoured, higher-quality whisky with less ‘peet reek’.

In total, 35 distilleries would use a hyphenated Glenlivet suffix: Macallan-Glenlivet, Glenfarclas-Glenlivet, Craigellachie-Glenlivet, Dufftown-Glenlivet, etc. The River Livet ran only 14km through the glen before flowing into the River Avon then joining the River Spey – only three licensed distilleries ever operated along the Livet’s waterway. Distilleries across the Speyside region were keen to associate their whisky with this valley. It was jokingly called the ‘longest glen in Scotland’ and the title certainly seems to have been apt!

As the Copyright Act had no legal teeth for manufactured brands, the passage of the 1875 Trademark Registration Act permitted litigations against brand infringements. John Smith applied for Glenlivet’s registration in 1876; however, errors by his solicitor delayed his ability to prosecute trademark infringements until 1882. Petitioning the High Court of Justice in London, he first charged his main antagonists: Alexander Fraser & Company of Glenburgie-Glenlivet Distillery in Elgin and their London agent, Charles Haig. With multiple offenders plagiarising the Glenlivet name, Smith began prosecuting a series of trademark cases simultaneously.

In May 1884, the court ruled favourably permitting Smith’s Glenlivet distillery the right for perpetual ownership to the trademark ‘the Glenlivet’. However, it was only a partial victory as the agreement between vexatious parties permitted other distilleries to use Glenlivet as a hyphenated suffix in their trademarks. By the 1980s, 27 distilleries still used Glenlivet in their name, providing perfect evidence of the locality’s enduring commercial reputation.

Meanwhile, Congress attempted legislating a national copyright standard in 1870 as half a dozen American states had already passed varying trademark laws. It was not until the Commerce clause in March 1881 that the first enforceable Federal trademark law passed. This legislation resulted in the first distillery trademark case involving ‘description of place of manufacture’ with ‘right of trademark’ at the Old Oscar Pepper Distillery, at the original site where Old Crow whiskey was first distilled from 1840 to 1854.

In 1869, three years after Oscar Pepper’s death, Gaines, Berry & Co leased the Old Oscar Pepper Distillery for three years and acquired the Old Crow trademark, then built the new Old Crow Distillery a few miles downriver in 1874. Here they continued James Crow’s recipe – while Oscar Pepper’s son, James, built another Oscar Pepper Distillery 20 miles away in Lexington. Both the Crow and Pepper names had enviable reputations in Kentucky. The original Old Oscar Pepper Distillery and trade name was purchased by Leopold Labrot and James Graham in 1878. James Pepper challenged this contract and lost the case as Labrot & Graham had purchased the trademark with the distillery and land, forcing James to call his new distillery James E Pepper. Old Crow whiskey continued production at the Old Crow Distillery, and the brand became the most litigious whisky trademark in American history, as unscrupulous competitors pirated, passed off and misrepresented it for commercial gain.

In a deposition, Old Crow’s owners claimed by 1896 to have instigated more than 2,000 trademark infringement cases. In many of these submissions, they asserted their locality directly contributed to the whisky’s flavour, and therefore the locale was integral to Old Crow whiskey. They stressed the importance of the spring source from the chert limestone water, locally grown grain and distilling equipment, describing the area’s microflora as contributing ‘particular ferments of locality’ due to the uniqueness of the Glenns Creek environment, while scrupulously applying James Crow’s prescribed formulas from grain to the barrel. They were able to successfully litigate these trademark infringements.

During the past two decades, the field of greatest inquiry and experimentation has been cask wood and maturation; investigating everything from the locality of oak sub-species, a section of the tree trunk, seasoning and kilning methods, to vulcanising stave treatments, cooperage techniques and finishing enhancements, wood management and flavour innovation has been the main focus for incremental new product extensions. Attention is currently refocusing on localisation by investigating the contributions grain and yeast plays in flavour.

These two biological fields complement the two major growth trends in the whisky industry, namely Scottish malt whisky and American straight whiskey, as both categories engage consumer interest with locality and the discernible characteristics present in some distilleries’ whisky portfolios. Distilleries are innovating by exploring heritage and landrace grains, testing localised cerevisiae strains and microflora in search of local ‘product authenticity’ through chemistry, biology and marketing.

Some distilleries are seeking to discover the extent to which locality, such as Bruichladdich and Kilchoman’s efforts on Islay, and specific grain varieties, such as recent projects at Waterford in Ireland, can exhibit noticeable and desirable sensory affinities to whisky. As grain undergoes a succession of destructive and transformative processes – from kilning, fermentation and distillation to long periods of maturation – the question is what palatable qualities persist in imbuing whisky with a sense of place. The organoleptic and perceived criteria on Sense versus Sensibility now has to patiently await consumer judgement.
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