IP in the use of meat terminology | Is your brand deceptive? Don't fall foul of trade mark law

This is becoming an increasingly important issue in relation to alternative food products where a trade mark risks the relevant consumer believing that the goods have characteristics that they do not have. This is the case because the essential function of a trade mark is to indicate the commercial origin of the goods and services to which it is applied. If the information contained in the mark would deceive the public, it cannot perform this essential function.

This was reaffirmed in a recent EU case where the General Court found that the European Intellectual Property Office (EUIPO) had been right to refuse registration of the sign "MYBACON" for meat substitutes, specifically fungi-based meat substitutes, as it created a risk of deceiving the average consumer as to the nature of the goods.

Relevance of EU labelling rules

The applicant had sought to rely on EU labelling rules, in particular the European Parliament's rejection of a proposal to restrict the use of certain terms such as "burger", "steak" and "sausage" to meat-based products, stating the EUIPO had not properly considered these in reaching its decision to deny registration.

The General Court held that the earlier decision had provided sufficient reasons to conclude that EU labelling rules were irrelevant to the rules that govern eligibility for trade mark protection. Labelling rules merely enable consumers to make informed choices when purchasing food products by providing information about their content and composition. Providing such information on labels does not preclude a trade mark application from being rejected for being misleading for the goods in question.

Here, for example, there was the possibility that consumers would simply rely on the sign "MYBACON" without reading the label when making a hurried purchase and mistakenly think that the product contained pork.

Risk of consumer being deceived?

The General Court found that the EUIPO's Board of Appeal was right to identify that relevant public for the goods applied for was an English-speaking member of the general public, rather than more narrowly, just vegans and vegetarians. The EUIPO had correctly taken into account factors that would influence the average consumer's purchasing decision in order to assess whether there was a risk that they would be deceived.

These factors included taking account of the varying levels of attention that the average consumer could pay (from making a rushed purchase to a more considered purchase if particularly interested in vegan alternatives) and the fact that vegan/vegetarian alternatives and non-vegan/meat options are often found near each other in supermarkets and packaged similarly.

Considering the "MYBACON" sign itself, the applicant had sought to argue that the word "bacon" had evolved to designate vegetarian or vegan products as well as those derived from pigs. It also maintained that the prefix "MY" precluded the risk of deception because it refers to "mycelium" or "myco", which refer to fungi. The General Court was unconvinced by both of these arguments. The fact that the mark applied for could be used in a non-misleading way was irrelevant and was not enough to save the mark from being refused – it is sufficient that some consumers will find the mark deceptive.

This decision underscores that brand owners need to be careful to ensure that they do not fall foul of the strict approach trade mark law takes towards the issue of deception.

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