Fungi-based bacon named ‘MYBACON’?

Plant-based alternatives to meat and other animal products have found their way into the shelves of traditional food retailers. This trend has caused some interesting trade mark filings and decisions. The General Court found Oatly’s slogan ‘It’s like milk but made for humans’ sufficiently distinctive inter alia for ‘diary substitutes’ (IPKat here). ‘THE FUTURE IS PLANT-BASED’ on the other hand was rejected as non-distinctive (here).

Another important issue for alternative food products is the risk of deceiving consumers. Art. 7(1)(g) EUTMR prohibits the registration of trade marks, which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or services. On that basis, the EUIPO and the German Patent Court rejected ‘VROMAGE’ inter alia for ‘imitation cheeses’ (014613368 and 25 W (pat) 552/19). The General Court recently dealt with the question whether the sign ‘MYBACON’ is registerable for meat substitutes.

Background

Myforest Foods Co. (‘Myforest’) filed for registration of the word mark ‘MYBACON’ for ‘fungi-based meat substitutes; meat substitutes; prepared meals consisting primarily of meat substitutes including fungi-based meat substitutes’ in class 29. The EUIPO rejected the application on the basis of Art. 7(1)(g) EUTMR. The Board of Appeal of EUIPO (‘BoA’) dismissed Myforest’s appeal. The case was brought before the General Court (case T-107/23).

The General Court’s decisions

The General Court dismissed the action.

The judges found that the circumstances for a refusal under Art. 7(1)(g) EUTMR presuppose the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived. A trade mark cannot fulfil its essential function to guarantee the commercial origin of goods and services if the information that it contains deceives the public. The conditions of Art. 7(1)(g) EUTMR are fulfilled when the targeted consumer is led to believe that the goods and services possess certain characteristics which they do not in fact possess.

Regarding the relevant public, Myforest argued that consumers of meat substitutes are particularly interested in the composition of the goods and that they will read the label with the mandatory list of ingredients. The judges were not convinced by this argument. The goods as listed in the application are intended for the general public and not just for vegans or vegetarians. Goods in class 29 are everyday consumer products, which are bought quickly and without paying great attention. Consumers may purchase the goods in haste without reading the label.

Myforest also argued that the term ‘bacon’ does not only refer to ‘meat from the back and sides of a pig, dried, salted and usually smoked’ (as defined in the Collins English dictionary) but evolved to designate also vegetarian or vegan products. The judges rejected this argument because the evidence adduced by Myforest did not show that the term ‘bacon’ in isolation was used to denote non-meat products. It was always accompanied by further specifications such as ‘vegan bacon’. Furthermore, Art. 7(1)(g) EUTMR applies even if a non-deceptive use of the mark is possible. Therefore, the fact that the mark might also be perceived in a way that is not misleading is irrelevant.

The General Court was also not persuaded by the argument that the element ‘MY’ precluded the risk of deception. According to Myforest, it refers to 'mycelium' and ‘myco’, a prefix meaning ‘fungi’. The judges found that most consumers will not know this prefix and it is sufficient for a trade mark to fall foul of Art. 7(1)(g) EUTMR that some consumers understand the term ‘MY’ exclusively as denoting that the goods are specifically developed ‘for me or my dietary requirements’. Therefore, the fact that some consumers will understand the mark applied for as meaning ‘meat from the back and sides of a pig, dried, salted and usually smoked, developed for my requirements’ is sufficient for a finding that the sign is deceptive.

Myforest cited allegedly similar EU trade mark registrations such as ‘BEYOND BACON’, ‘IMPOSSIBLE MEAT’, ‘MIRACLE MEAT’ and ‘FUTURE BURGER’. The General Court very briefly argued that additional words like ‘BEYOND’ indicated that the goods are not meat or burgers. This is, however, not true for ‘MY’.

Myforest referred to the EU Parliament rejecting an amendment of EU law, which would have limited the use of the terms ‘burger’, ‘steak’, ‘escalope’, ‘hamburger’ and ‘sausage’ exclusively to meat-based products in October 2020. Myforest argued that this constitutes evidence that the use of the sign ‘MYBACON’ for fungi-based meat substitutes is not misleading. The judges dismissed this argument because the discussions in the Parliament did not concern trade mark law and the rejection of a proposal to restrict the use of certain terms to meat products does not imply that their use for other goods would not be misleading.

Comment

It is one thing not to obtain trade mark protection. Another question if the trade mark can be used. Misleading ‘commercial practices’ in B2C settings are prohibited by Art. 6 of the Unfair Commercial Practices Directive. Art. 7 of the Food Information to Consumers Regulation also contains a ban of misleading information for foodstuff. While deception under trade mark law is only assessed in relation to the mark and the goods and services as indicated in the application, the misleading character under unfair competition and food law allows taking into account circumstances outside the (allegedly) misleading trade mark, such as information on the label (cf. CJEU, Teekanne, C-195/14). Therefore, trade mark law is stricter than unfair competition and food law and it may be lawful to use a ‘deceptive’ trade mark.

Picture is by Dagmara Dombrovska and used under the licensing terms of pexels.com.