Peru Cannot Claim Exclusive Right Over 'PISCO': Delhi High Court Rules Standalone GI Would Cause Consumer Confusion, Upholds 'Peruvian Pisco' Registration

"In the face of spiritous liquors, from the adjoining countries of Peru and Chile both being known as 'Pisco'… the Registrar in India would certainly be breaching Section 9(a) of the GI Act if he were to allow either Peru, or Chile, the absolute right to use PISCO as a GI"

In a landmark ruling on the Geographical Indications of Goods (Registration and Protection) Act, 1999 — one of the first significant judicial pronouncements on the GI Act by the Delhi High Court — a Division Bench comprising Justice C. Hari Shankar and Justice Om Prakash Shukla dismissed Peru's appeal seeking exclusive registration of the Geographical Indication "PISCO" for its alcoholic beverage, holding that such registration would violate the absolute bar under Section 9(a) of the GI Act by causing consumer confusion. The Court, however, upheld the registration of the modified GI "PERUVIAN PISCO" as legally valid under Section 11(6) of the Act.

Opening the judgment with a literary flourish, Justice C. Hari Shankar remarked that if judgments could be given subtitles, this one could be subtitled — with due apologies to Dickens — "A Tale of Two Countries."

The Embassy of Peru filed an application under Section 11(1) of the GI Act seeking registration of "PISCO" as a Geographical Indication for an alcoholic grape-based beverage produced in the Peruvian departments of Lima, Ica, Arequipa, Moquegua, and the Tacna valleys. The Asociacion De Productores De Pisco A.G. (ADP), representing Chilean Pisco producers, opposed the application, asserting that "Pisco" was also a long-standing GI for an alcoholic beverage produced in Chile.

The Assistant Registrar of Trade Marks, by order dated July 3, 2009, allowed Peru's registration — but only as "PERUVIAN PISCO," not as a standalone "PISCO." Peru appealed before the Intellectual Property Appellate Board (IPAB), which reversed the Assistant Registrar's decision in 2018, directing registration of the standalone GI "PISCO" in Peru's favour. ADP then challenged the IPAB order before the Delhi High Court. A learned Single Judge, by judgment dated July 7, 2025, set aside the IPAB order and restored the Assistant Registrar's direction to register "PERUVIAN PISCO." Aggrieved, Peru filed the present Letters Patent Appeal.

Section 9(a): An Absolute Bar That Overrides All Other Considerations

The Division Bench held that the entire dispute was capable of resolution by reference to Section 9 of the GI Act alone. The Court emphatically held that satisfying the definition of a Geographical Indication under Section 2(1)(e) does not confer an absolute entitlement to registration. If any of the prohibitions under Section 9 are attracted, registration must be refused.

Section 9(a) prohibits registration of any GI whose use would be likely to deceive or cause confusion. The Court characterised this prohibition as absolute, noting that the word "shall" admits of no exception and that the provision has not been made subject to any other provision of the statute.

Crucially, the Court held that Section 9(a) is agnostic of all other considerations — considerations of priority of use and equity, in particular, are entirely irrelevant where likelihood of confusion is established. "The proscription under Section 9(a) is agnostic of all other considerations. Considerations of priority of use and equity, in particular, are irrelevant, where likelihood of confusion is found to exist," the Court declared.

Applying this principle, the Court found it beyond dispute that "Pisco" had been in long-standing use in Chile as the name of an alcoholic beverage. The evidence on record — including Chilean legislations relating to Pisco dating back nearly a century, Free Trade Agreements executed between Chile and multiple nations including Mexico, the USA, Canada, China, the EU, South Korea, and others, and even material relied upon by Peru itself — conclusively established that Chilean Pisco was widely known internationally.

The Court concluded: "Neither Peru nor Chile can, therefore, be granted the GI PISCO, per se."

Chile Did Not Dishonestly Misappropriate 'Pisco': IPAB's Finding Rejected

A central plank of Peru's case before the IPAB and before this Court was that Chile had dishonestly misappropriated the name "Pisco" by, inter alia, renaming the Chilean town La Union as "Pisco Elqui" in 1936 to create a spurious geographical link. The IPAB had accepted this allegation and returned a finding of misappropriation.

The Division Bench comprehensively rejected this finding. It noted that Peru's entire evidentiary basis for the allegation of dishonesty was the single act of renaming the town La Union as "Pisco Elqui." The Court noted that even the Memoirs of former Chilean President Gabriel Gonzales Videla — a document on which Peru itself relied — acknowledged that Chilean Pisco was being traded even before 1946, which meant the factual existence of Chilean Pisco predated the alleged act of dishonesty.

"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 observed.

The Court further held that the IPAB had returned its finding of misappropriation purely on presumption, with little or no material cited to sustain it, and had failed entirely to discuss Chile's stand.

In any event, the Court underscored, even if dishonesty were established, it would be legally irrelevant to the analysis under Section 9(a), which operates independently of such considerations.

FTAs Are Valuable Evidence of International Recognition, Not Mere Political Agreements

Peru contended strenuously that the Free Trade Agreements between Chile and various nations were merely commercial and political arrangements and could not be used to establish GI rights. The Court rejected this argument.

The Court held that FTAs are solemn commercial agreements between nations and manifest international recognition of the fact that the alcoholic beverage manufactured in Chile is known worldwide as "Pisco." "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. They, therefore, constitute valuable — perhaps more valuable than antiquated historical tomes, the correctness of which can hardly be verified at this distance of time — evidence of the identification of the alcoholic beverage manufactured in Chile with the name 'Pisco,'" the Court held.

The Court clarified that the FTAs were relevant not to establish goodwill or reputation of the GI in India, but to demonstrate that "Pisco" is an indicator of origin for goods manufactured in Chile — which is the determinative question under the GI Act.

Section 9(g) Not Attracted: Positive Misrepresentation Is the Sine Qua Non

The Court, however, disagreed with ADP's contention that Peru's use of "PISCO" would also violate Section 9(g), which prohibits registration of a GI that is literally true as to origin but falsely represents the goods as originating elsewhere.

The Court held that Section 9(g) requires a positive representation by the GI user that the goods originate in another territory. Mere likelihood of consumer confusion — absent such positive misrepresentation — does not attract Section 9(g). Since Peru, by using "PISCO," would be asserting that the beverage originates in Peru (which is literally true), and not falsely claiming any other origin, the clause was not attracted.

"Positive representation, by the GI user, that the goods originate elsewhere, is the sine qua non for Section 9(g) to be attracted," the Court held, adding that Section 9(a) applied nonetheless.

Historical Data Is Legally Irrelevant Once Section 9(a) Is Triggered

The Court firmly rejected the extensive historical arguments advanced by Peru — tracing the word "Pisco" to Quechua origins, citing 15th century records, travelogues, maps from 1534, encyclopaedia entries, and other archival material — as legally immaterial to the statutory inquiry.

The Court held that GI law, unlike trademark law, does not prioritise prior user, greater goodwill, or historical origin. "Considerations of prior user, greater goodwill, and such other factors which inform the entitlement to registration under the Trade Marks Act, 1999, are alien to the GI Act," the Court declared. The statutory framework under the GI Act is concerned only with whether the GI satisfies the definitional criteria under Section 2(1)(e) and whether it is barred under Section 9 — nothing more.

Homonymous GI Doctrine Misapplied by the Single Judge

The Single Judge had upheld the "PERUVIAN PISCO" registration partly on the basis of the doctrine of homonymous GIs under Section 10 of the GI Act, treating the registration as a homonymous GI with an added geographical identifier.

The Division Bench held this reasoning to be erroneous. It interpreted Section 10 to mean that homonymous GI registration is permissible only where there is an existing registered GI identical in spelling and pronunciation, and only upon a specific application seeking such homonymous registration — not suo motu. Rule 32(1)(6)(h) of the GI Rules explicitly requires an application for a homonymous GI to disclose the material factors differentiating it from the earlier registered GI.

"These provisions, read in conjunction, make it clear, beyond any shadow of doubt, that a homonymous GI can be registered only on an application seeking such registration, and that such registration can be sought only where there is an existing registered GI which is homonymous to the GI of which registration is sought," the Court held.

Since there was no prior registered GI "PISCO" on the Register at the time Peru applied, the homonymous GI doctrine was simply inapplicable.

"The words 'amendments, modification, conditions or limitations', as employed in Section 11(6), are as wide as all outdoors"

Section 11(6) Independently Sustains 'Peruvian Pisco' Registration

While disagreeing with the Single Judge on the homonymous GI rationale, the Division Bench upheld the final conclusion — registration of "PERUVIAN PISCO" — on the basis of Section 11(6) of the GI Act.

The Court held that Section 11(6) vests in the Registrar a wide, unfettered discretion to accept an application for GI registration "subject to such amendments, modifications, conditions or limitations as he thinks fit." This power, the Court held, is broad enough to encompass acceptance of a GI application subject to the addition of a geographical prefix such as "PERUVIAN."

The Court further held that Section 16(1) — which in its plain terms provides for registration of the GI as applied for — must be read harmoniously with Section 11(6). Thus read, there was no infirmity in accepting Peru's application subject to the modification of adding the prefix "PERUVIAN."

"The words 'amendments, modification, conditions or limitations', as employed in Section 11(6), are as wide as all outdoors. They are unfettered by any caveats contained in the statute or outside it," the Court held.

The Court accordingly held that both the Assistant Registrar and the Single Judge were well within their jurisdiction in directing registration of "PERUVIAN PISCO."

Conclusion

The Delhi High Court dismissed Peru's appeal and held that Peru was not entitled to the standalone GI "PISCO" as it would cause consumer confusion in violation of Section 9(a) of the GI Act — a bar that admits of no exception and overrides all considerations of historical origin, prior use, or equity. The Court clarified the law on homonymous GIs, holding that such registration requires both a prior registered homonymous GI and a specific application. The registration of "PERUVIAN PISCO" — upheld on Section 11(6) grounds — was sustained. The Court added that if Peru is not interested in the "PERUVIAN PISCO" registration, it is at liberty to surrender it in accordance with law.

Date of Decision: March 18, 2026