The plant-based food industry is growing at a rapid pace, with popularity amongst consumers increasing because of its purported health and environmental benefits. However, a recent General Court decision in the EU highlights the difficulties brands face in obtaining trade mark protection for plant-based food if brands are not sufficiently distinctive (despite a tendency in the industry to develop brands which are a play on words of traditional food products).

The Decision

The Not Company SpA had applied to register the below figurative “NOT MILK” mark in the EU but the application was initially rejected based on its descriptive nature and lack of distinctiveness.

The applicant appealed the decision, first to the Board of Appeal and then to the General Court.

The applicant argued that the phrase NOT MILK could not be descriptive as it required a cognitive interpretation by the public to understand its meaning. However, the General Court was unconvinced. It held that the expression had a clear meaning that indicated the relevant products did not contain milk, thereby making the mark descriptive in nature.

Overall, the refusal was upheld because of the following:

• The suggestion that the products did not contain milk implicitly referred to an objective characteristic that was intrinsic to those products;
• The message could be understood in the same way as other comparable expressions, such as “milk free”; and
• The stylisation of the trade mark was insufficient.

Takeaways

Whilst it is important to communicate the ingredients of a product (or lack thereof), to benefit from trade mark protection, brands should ensure that their trade marks are unique and distinctive. In doing so, companies will hopefully avoid the persistent pitfall of descriptiveness that often prevents registration.

As such, whilst this may have been a disappointing decision for some within the plant-base food industry, if the right balance is struck between distinctiveness of a trade mark and the description of a product’s characteristics, trade mark protection is still very much attainable, whilst preserving the significance of the actual product ingredients themselves.

Helen J. Phizackerley also contributed to this article.