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4 January 2024

Veganu-ready? Plant based branding

If asked to suggest a plant-based meal for this Veganuary, how many would say the humble beans on toast?  Apparently, such a suggestion is uncultured to some, but there are a range of other vegan options available.

Brand owners have certainly noticed the uptick in consumer demand for vegan options, and that is reflected at the UK and EU Intellectual Property Offices (UKIPO and EUIPO) which receive a steady stream of trade mark applications for vegan products.

Vegan certification is also on the rise, with over 65,000 products from more than 2,500 companies worldwide using the certification mark via a licence agreement with The Vegan Society.

Brand owners need to consider a number of different factors concerning the branding their plant based products before introducing them to the market.

Trade Marks

Plant based products are often marketed with the intention of appealing to consumers who are looking to replace the meat equivalent for ethical or health reasons, and as such that have similar taste and texture to animal based foods. Brand owners often wish to allude to a meat product for their plant based alternative.  However, this can present challenges when it comes to trade mark registration. For example, MYBACON applied for in relation to meat substitutes was rejected at the EUIPO for being deceptive. This is why careful consideration is needed when deciding upon a product name.

There are also difficulties in adopting terms which other traders may wish to or indeed may already have coined and protected, and it is worth bearing in mind that terms which meet the distinctiveness threshold for registrability may still be considered to have low distinctiveness so that their value as part of a registered trade mark is more limited.  The earlier right holder of the MEATLESS FARM mark found this out when they opposed the later MEATLESS KITCHEN application at the UKIPO.  The opposition failed owing to the perceived low distinctiveness of the common ‘MEATLESS’ element in both marks.

Certification Marks

Whereas trade marks serve as an indication of origin, certification marks indicate that the goods or services bearing the certification mark meet the standards set by the owner of the mark.

The logo  owned by the charitable organisation The Vegan Society was established in 1990 and is a certification mark. In order to be able to use the logo owned by The Vegan Society, brand owners must demonstrate that their product meets the standards set by the Society and pay a fee to the Society. However, use of the certification mark has value to brand owners as consumers recognise the logo and will be reassured that as the product bears the logo, it will be of a certified standard and that the manufacture and/or development of the product bearing the logo has not involved the use of any animal product, by-product or derivative. Given the prevalence of plant based claims being made in the FMCG sector, this may give brand owners with The Vegan Society certification a competitive edge.

Protected terms

Brand owners need to be aware of a raft of legislation covering foodstuffs when they devise their new brand. This is particularly the case for plant based foodstuffs. For example, the use of the words milk, butter and cheese, along with a number of other terms, for non-dairy alternative products is prohibited under adopted EU legislation.  A recent decision in December 2023 from the UK High Court represents an interesting development.

As mentioned in a previous article, the Swedish company Oatly AB, which manufactures oat based dairy alternative products registered the trade mark POST MILK GENERATION in the UK and that registration was challenged by Dairy UK Ltd, the company that represents the interests of the UK dairy industry. The challenge was successful at the UKIPO and Oatly appealed the decision to the High Court. The Judge found that the prohibition of use of the term ‘milk’ applies where use of the term identifies them as being milk, whereas for the mark concerned, the Hearing Officer had found that ‘the average consumer will view the mark as … for consumers … who no longer consume dairy milk’. The Judge found that Oatly’s mark was distinctive and did not cover milk products. As such it was not prohibited from use or registration by the adopted EU legislation.

It is worth noting that the Judge did comment that if Oatly were to market and sell at oat-based drink as ‘oat milk’ it would fall foul of the adopted EU legislation. The full judgement can be read here.

The lesson to take from this is that a trade mark which clearly indicates to the consumer that the product is not a dairy product but which contains a prohibited word may be capable of use and registration, but as always, the devil will be in the detail.

 

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