On 17 December 2024, the Fourth Board of Appeal of EUIPO (European Union Intellectual Property Office) definitively rejected Beyond Meat Inc.’s request to register as a European trademark – in product class 29, which includes meat and products of animal origin, as well as processed vegetables – the design of a cow on a green background. (1)
1) Trademark registration classes, introduction
The international classification of products and services, for the purposes of trademark registration, was established with the Nice Agreement (1957) and updated on several occasions, in Stockholm and Geneva. Its use is mandatory to identify the product classes on which the trademarks insist, also for the purposes of their registration at European (EUIPO) and international level (WIPO. World Intellectual Property Organization).
Class 29 applies to the following categories of food products:
– meat, fish, poultry and game
– meat extracts
– preserved, frozen, dried and cooked fruits and vegetables
– jellies, jams, compotes
– egg
– milk, cheese, butter, yogurt and other dairy products
– oils and fats.
This class therefore includes both food products of animal origin and vegetables and other edible horticultural products prepared or preserved for consumption. For example:
– foods based on meat, fish, fruit or vegetables
– edible insects
– milk-based drinks
– plant-based drinks as an alternative to milk
– preserved mushrooms
– legumes and nuts
– seeds, other than condiments and flavourings. (2)
2) Beyond Meat, the ‘meat substitutes’ giant
Beyond Meat Inc. is a company that produces ‘plant-based foods’ that look and taste similar to meat. Founded in California (USA) in 2009, it reached the retail market in 2012 and achieved extraordinary growth thanks to collaborations with fast-food giants such as Dunkin’ and KFC. Gathering the interest of major investors including Bill Gates, when it went public in 2019. (3)
The success of producers of plant-based alternatives to meat recorded a setback in 2019, following the lively advertising campaign ‘What’s hiding in your plant-based meat?’ (4) ‘The Center for Consumer Freedom’ has in fact highlighted the ultra-processed nature of many products presented as veg alternatives to meat and its preparations.
In response to this campaign, Beyond Meat – in addition to claiming the lower environmental impact of plant-based foods – has started a process of reformulating its foods. Improving the nutritional profiles (initially poor, due to the use of palm and coconut oil, with high levels of saturated fats) and reducing additives. (3)
3) Interbev – Beyond Meat, the dispute over the European trademark
On 22 June 2021 Beyond Meat had attempted to register as a European trademark the drawing of a cow with a cape, in white on a green background. The application was published on July 15, 2021 and the figurative trademark was registered on October 22, 2021, across multiple product classes.
On 21 April 2023 Interbev – an inter-professional organisation representing livestock and meat producers and traders in France, which also includes farmers’ associations (i.e. Confédération Paysanne) and the organic sector (5) – has submitted an application for cancellation of this trademark for all products in classes 29 and 30:
– Class 29, as we have seen, includes products of both animal and vegetable origin, including vegetarian and vegan meat substitutes
– Class 30 includes sandwiches, pizzas and pies (including savoury ones) with meat substitutes, vegetarian or vegan meat products, or plant-based meat substitutes.
3.1) Legal issues raised by Interbev
Interbev asked EUIPO to declare the absolute invalidity of the figurative mark of Beyond Meat with a cow on a green background – pursuant to the Trademarks Regulation (EU) 2017/1001 (5) – stating that it is misleading because it is capable of misleading the consumer, creating confusion about the nature and quality of the products it designates in classes 29 and 30.
The Beyond Meat website, in fact, promotes a range of ultra-processed foods, advertised as alternatives to meat with the systematic use of the figurative trademark of a cow on a green background. The contested trademark contributes to maintaining confusion for the consumer who will imagine that those products have the same properties, quality and naturalness as meat.’. (6)
The legal issues are structured as follows:
– the reference to the image of the cow, which appears in the brands of unprocessed or minimally processed foods (except for chocolate. See Figure 1), on ultra-processed foods, is contested. And furthermore
– it is noted how this brand is associated with ‘meat sounding’, that is, with product names that recall meat preparations (ie burger, mince, meat balls, nuggets). And with equally evocative commercial information.
3.2) Beyond Meat Topics
The arguments deduced from Beyond Meat, in summary:
– the figurative element corresponding to the contested trademark has been registered
many countries around the world. Its products, thus marked, are marketed in more than 85 EU member states
– Beyond Meat products and meats have one thing in common, the provision of a protein source that allows consumers to prepare meals with different types of proteins, including plant-based ones.
– almost all products that offer an alternative to meat use the names of meats to indicate the specific product for which they offer an alternative. Consumers are so accustomed to identifying such products
– the results of an IPSOS survey (2022) confirm that 75% of consumers are ‘flexitarians’ (they therefore consume both ‘plant-based foods’ and products of animal origin) and are not deceived by the contested brand, nor by other similar ones. (7)
3.3) EUIPO, first decision
The EUIPO Cancellation Division, with a decision dated 7 May 2024, had already declared the partial invalidity of the contested trademark as misleading, in relation to some products in classes 29 and 30, for the following reasons:
– ‘the contested products are intended for the general public with an average level of attention. They are frequently used products, generally not expensive or rare, which do not require particular knowledge or experience to be purchased. (…) these foods are generally available in supermarkets and a significant part of the public buys foods, including the products in question, in a hurry, demonstrating at most an average level of attention‘;
– ‘the contested figurative mark will be perceived by the public throughout Europe as depicting a stylised bovine wearing a cloak, on a green background. The animal could be perceived as an ox but also as a cow. The logo provides in fact contradictory information: all these products are presented as substitutes for meat or dairy products, but they are not the same as meat‘.
3.4) EUIPO, second decision
The Fourth Board of Appeal of EUIPO, on 17 December 2024, confirmed the above-mentioned previous decision. Noting that:
– according to established case law, the circumstances for refusing registration presuppose the existence of an actual deception or a sufficiently serious risk of
consumer deception;
– ‘the essential function of the trademark is to guarantee to the consumer or end user the identity of the origin of the products or services designated by the trademark, enabling him to distinguish them without the possibility of confusion from products or services of a different origin‘;
– the Beyond Meat brand ‘may mislead the public and is no longer able to fulfil its role of guaranteeing the origin of the products and services it designates‘.
4) Precedents. The ‘MyBacon’ brand
A significant precedent concerns the word mark ‘My Bacon’. On 29 November 2023, the General Court (GC) of Luxembourg confirmed the decisions of EUIPO, declaring the invalidity of the same because it was misleading for meat substitutes in class 29. (8) The reasons, in summary:
– these are foods in common use, ‘inexpensive, usually sold in supermarkets, and their purchase is not preceded by a long period of reflection. Therefore, the target audience shows at most an average level of attention and devotes little cognitive effort to their purchase‘ (§ 39-40).
– although the word ‘bacon’ may have evolved to refer to bacon from other meat or vegetable sources, the word continues to refer to pork products. The examples ‘turkey bacon’ or ‘vegan bacon’ (…) do not demonstrate that the word ‘bacon’ alone has lost its original meaning (§ 51-57);
– ‘since there is a contradiction between one of the possible meanings of the sign «MYBACON» and meat substitutes, the fact that the word «my» may also be perceived by some consumers as a reference to the mycelium or to the applicant’s business name is ineffective‘ (§ 71, 77).
5) Provisional conclusions
Marketing of innovative food products, in the European Union, requires particular attention to the sensitivities variously expressed by:
– Court of Justice. Which has expressed different approaches, as we have seen, in relation to the cases of ‘meat sounding’ and ‘cheese sounding’ (9,10);
– EUIPO and General Court. Not to mention the rejection of Oatly’s ‘post milk’ trademark by the Court of Appeal in London, in November 2024 (11);
– national authorities for the protection of competition and the market, advertising self-regulation institutions, supervisory authorities.
The scope of Food Information Regulation (EU) 1169/11 and Nutrition and Health Regulation (EC) 1924/06, moreover, is also extended to brands.
Our FARE team (Food and Agriculture Requirements) is available to those who intend to prevent the risk of accidents along the way.
Dario Dongo
Footnote
(1) EUIPO, Fourth Board of Appeal. Case R 1368/2024-4 for cancellation proceedings No 59 789 C (European Trade Mark No 18 497 478). Beyond Meat Inc. v. Interbev. Decision 17 September 2024
(2) Trademarks list of classes, with explanatory notes. EUIPO https://tinyurl.com/2w2ftacz
(3) Beth Greenfield. Beyond Meat CEO says a smear campaign almost killed his business. Here’s how he’s fighting back. Fortunes. 22.11.24 https://tinyurl.com/3zntauem
(4) Ad: What’s Hiding Inside Plant-Based “Meat”? The Center for Consumer Freedom. October 28, 2019 https://tinyurl.com/ye27tdf8
(5) Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark https://tinyurl.com/4ybbbh94. See Articles 7.1.g and 59.1.a
(6) Beyond Meat https://www.beyondmeat.com
(7) IPSOS (2022). Making plants a better future. Reports https://tinyurl.com/yr774n95
(8) General Court (Eighth Chamber). Case T‑107/23, Myforest Foods Co. v. EUIPO. Decision 29 November 2023 https://tinyurl.com/2urrvsej
(9) Dario Dongo. Meat sounding, green light from the EU Court of Justice. FT (Food Times). October 6, 2024
(10) Dario Dongo. ‘Cheese sounding’, the EU Court of Justice confirms the ban. FARE (Food and Agriculture Requirements). 15.6.17
(12) Dario Dongo. Oatly: London Court of Appeal denies ‘post milk’ trademark GIFT (Great Italian Food Trade). 11.12.24
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
