Can Peru Trade Mark PISCO?

Can a country effectively claim rights over the name of a drink?

That was the question at the heart of the recent Federal Court decision in Republic of Peru (Peruvian State) v Registrar of Trade Marks [2026] FCA 791.

The dispute concerned Peru's application to register PISCO as a certification trade mark in Australia. But behind that relatively technical trade mark application was a much bigger question about intellectual property: when a product becomes closely associated with a particular place, culture and method of production, who should be entitled to use its name?

It's a question that matters well beyond Pisco.

Champagne, Scotch Whisky, Parmigiano Reggiano and Darjeeling Tea are all examples of products where geographic origin has become part of the product's commercial identity.

And, increasingly, businesses are recognising that where something comes from can be just as valuable as the brand printed on the packaging.

First, what exactly is Pisco?

Pisco is a grape spirit with a history stretching back centuries.

For Peru, it is much more than another alcoholic beverage. Pisco has been produced within the Pisco region for more than 450 years and is closely connected with Peruvian culture and tradition.

Peru also regulates its production.

Its Pisco regulations prescribe matters including the grapes that may be used, where the product can be produced, how it is distilled and how it must be labelled.

That becomes important when we look at the type of trade mark Peru was seeking.

What is a certification trade mark?

A normal trade mark generally tells you something about the commercial source of a product.

When you see a particular brand name or logo, its job is to distinguish that trader's goods or services from those of other traders.

A certification trade mark does something slightly different.

Rather than telling you who made the product, it tells you that the product has been independently certified as satisfying particular requirements.

Those requirements might relate to:

• quality;
• ingredients or materials;
• method of manufacture; or
• geographic origin.

This means multiple businesses may potentially use the same certification trade mark, provided they satisfy the certification requirements.

That makes certification marks particularly useful where producers collectively benefit from the reputation associated with a region, manufacturing method or standard.

Peru's application to register PISCO

In 2019, the Republic of Peru applied to register the word PISCO as a certification trade mark in Australia for "alcoholic beverages (except beer)".

Under the proposed certification rules, PISCO could only be used for products satisfying detailed requirements concerning their production and origin in Peru.

Initially, the Australian Trade Marks Office refused the application.

The problem was Chile.

Chile also produces and sells a grape spirit under the name Pisco.

The Trade Marks Office considered that PISCO had an ordinary meaning describing a traditional spirit produced in Peru or Chile. On that reasoning, Chilean producers and other traders could have a legitimate reason to use the word.

If PISCO simply meant a type of South American spirit, allowing Peru to control the term through a certification trade mark presented an obvious difficulty.

Peru appealed to the Federal Court.

What does PISCO mean to an Australian consumer?

This became one of the central questions in the case.

Importantly, the Court wasn't being asked to decide the broader historical dispute between Peru and Chile about who invented Pisco.

Justice Burley instead focused on something much more specific:

What would an ordinary Australian consumer concerned with alcoholic beverages have understood the word PISCO to mean as at 1 May 2019?

That distinction is important.

Trade mark law is ultimately concerned with how signs operate in the marketplace. Historical arguments may be relevant, but consumer understanding can be decisive.

The dictionaries didn't provide a simple answer

One particularly interesting part of the judgment concerns dictionaries.

The Australian Macquarie Dictionary defined pisco as a grape brandy made in Peru and Chile.

That appeared to support the Registrar's position.

But other dictionaries gave different answers. Some associated Pisco specifically with Peru, while others described it more broadly as a South American spirit.

The Court was reluctant simply to treat the dictionary definition as determinative.

There was a good practical reason for that.

The question wasn't simply:

"What does a dictionary say Pisco means?"

It was:

"What does Pisco mean to the relevant Australian consumer?"

Overseas specialist publications were also treated cautiously because they did not necessarily establish how the word was understood in the Australian market.

For businesses, this is an important reminder that the legal meaning of a brand or product name isn't always decided by opening a dictionary.

Context and marketplace evidence matter.

What did the Australian market show?

The evidence of actual sales became particularly important.

The Court found there was substantial evidence of Peruvian Pisco entering Australia over many years.

The judgment records evidence suggesting the equivalent of approximately 650,000 700ml bottles of Peruvian Pisco had been exported to Australia between 2005 and 2019.

Those products weren't simply labelled "Pisco".

Peruvian products were sold with information connecting Pisco with Peru and its regulated denomination of origin.

The Court considered that years of exposure to that labelling was likely to have educated Australian consumers about the relationship between Pisco and Peru.

There was also evidence of Chilean products being sold in Australia.

But the evidence was considerably more limited, particularly in relation to how those products had been labelled before the relevant date.

Looking at the evidence as a whole, Justice Burley concluded that it was more likely than not that an ordinary Australian consumer would understand PISCO, when used for alcoholic beverages, as indicating a location or region of origin in Peru.

That finding was crucial.

What about Chilean producers?

This is where the case becomes particularly interesting.

A fundamental concern in trade mark law is avoiding registrations that unfairly prevent other traders from using words they legitimately need to describe their own products.

So the Court also considered whether other traders, acting honestly, would legitimately want to use PISCO to designate the origin of alcoholic beverages produced somewhere other than Peru.

There was evidence that Chilean products described as Pisco had been sold in Australia.

But the Court was not persuaded on the evidence before it that PISCO had the broader ordinary meaning contended for by the Registrar — namely, a type of drink originating from either Peru or Chile.

The result was that PISCO was found to be inherently capable of distinguishing the goods covered by Peru's certification system.

Its existing use as a designation of origin for Peruvian products also supported that conclusion.

Peru wins — but the story may not be over

The Federal Court allowed Peru's appeal, set aside the Registrar's decision and ordered that the PISCO certification trade mark application be accepted.

That doesn't necessarily mean the international Pisco debate has been settled.

Acceptance of a trade mark application is not the same thing as determining every possible challenge to it.

Once accepted and advertised, interested parties have the opportunity to oppose registration.

Given Chile's own longstanding claim to Pisco, the next stage will be worth watching.

The bigger issue: when culture becomes commercially valuable

This case raises a fascinating issue about the intersection between culture and intellectual property.

A name can begin as the name of a place.

Over time, that place becomes associated with a particular product.

Consumers begin to recognise the name.

Producers invest in quality and reputation.

Eventually, the geographic name itself acquires enormous commercial value.

At that point, intellectual property law faces a difficult balancing exercise.

Protect too little, and producers elsewhere may be able to benefit from a reputation they didn't create.

Protect too much, and legitimate traders may lose the ability to use words that consumers understand as describing a category of product.

Australia has experienced the other side of that debate too.

Australian interests have challenged attempts overseas to secure exclusive geographical indication-style protection for names such as Mānuka Honey, demonstrating that these disputes aren't simply about protecting famous European or South American products.

They are ultimately about who gets to control commercially valuable language.

What can businesses learn from the PISCO decision?

There are a few broader lessons here.

First, reputation can itself become an asset.

Intellectual property isn't limited to a company's logo, invention or registered trade mark. The reputation surrounding a product's origin, production method or characteristics can have substantial commercial value.

Second, evidence matters.

The way products have actually been sold, labelled and marketed can become critical years later.

Businesses investing in distinctive brands should retain good records of:

• packaging and labels;
• advertising campaigns;
• website content;
• sales figures;
• geographic reach;
• media coverage; and
• historical marketing materials.

That evidence can become extremely valuable if the meaning or reputation of a brand is later disputed.

Third, certification marks are worth considering.

Industry associations, producer groups and organisations responsible for quality standards often focus on ordinary trade marks without considering whether a certification trade mark would better achieve their objectives.

Where the value lies in guaranteeing a common standard rather than identifying one particular business, certification may be the more appropriate strategy.

And finally, don't assume that a descriptive or geographic name has no intellectual property value.

The question is often more nuanced.

What does the name mean to consumers?

How has it been used?

What reputation has developed around it?

And would other traders legitimately need to use it?

The answers can change significantly over time.

Protecting What Your Business Is Building

The PISCO decision is a useful reminder that brands aren't created only through logos and clever names.

Sometimes they develop through geography, history, reputation and consistent standards maintained over decades — or even centuries.

Most businesses won't have 450 years of history behind their brand.

But the underlying principle is the same.

If customers associate a name, place, process or standard with your business or products, there may be intellectual property value worth identifying and protecting.

If you're not sure what intellectual property your business owns — or what may be worth protecting — you can complete my free IP Audit at www.elisesteegstra.com/ip-audit.

You can also book a strategy call to discuss your trade marks, brand protection and broader IP strategy.

Disclaimer: This article is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this article.