Is an inverted cow vegan?

 

With decision issued on 8 May 2023, the EUIPO refused an application for registration of the image of an inverted cow for products excluding the presence of meat, such as meat substitutes, protein for the use in industrial manufacturing of food products and related engineering services.

Facts of the case

On 30 December 2020, Redefine Meat Ltd. (the applicant) obtained the international registration No 1600229 consisting of the image of an inverted cow for goods and services in classes 1, 7, 29, and 42.

The international registration was then notified to the EUIPO. The examiner issued a provisional refusal of protection on 3 February 2022. The applicant appealed. On 19 August 2022, the Board of Appeal annulled the contested decision and remitted the case back to the examiner for procedural issues, thus without entering into the merit.

The decision

With this (new) decision the examiner provisionally refused (again) protection, with the sign being deceptive and lacking distinctive character.

a) Deceptive character

The sign was considered ineligible for registration because it is likely to deceive consumers when used in relation to the goods and services for which protection was sought. The figurative element (the inverted cow) would be understood by the relevant consumer as an inverted picture indicating a fully grown, domesticated cow. The examiner held that, even if the image of the cow is inverted, it would not depart from the features of how a cow is commonly portrayed and it would be seen as an indicator that such goods are cow-related or derived from cow.

b) Lack of distinctiveness

The sign would be also ineligible for registration because it is devoid of any distinctive character for the goods and services for which protection is sought. The examiner held that the sign would not be seen as a badge of origin since a cow would be seen as an indicator that such goods are cow-related or derived from cows. The examiner also relied on an internet search showing that the image of a cow is often used in relation to the objected goods in the market.

Comment

The increase of demand for vegan products has resulted in companies increasingly claiming that their products are vegan.  The use of  vegan trade marks can become a trusted indicator of such kind of products for consumers. Nevertheless, deceptive indications cannot enjoy protection.

The issue is not yet fully resolved. On 10 November 2022, the Zurich Administrative Court stated that the usage of nomenclature including “chicken” to describe meat-free foods is not deceptive. According to the Swiss Court the presentation of the food packaging, which boasts a “V” symbol denoting that the items are vegan, means that the use of animal names is not creating confusion among consumers.