There has been a whopper increase in plant-based products on the market both within and outside the EU. An EU funded Smart Protein project showed that Europe’s plant-based food industry had grown by 49% between 2018 and 2020. It is predicted that Europe’s plant-based food and beverage market will have a compound annual growth rate of 8.87% between 2022 and 2027.

Plant-based producers therefore need brand names that set them apart from the increasing number of competitors. In selecting brand names, brand owners need to balance:

• Consumers’ need to know they are buying plant-based products while understanding conceptually what the product may substitute
• Avoiding using trade marks that are descriptive, and
• Having a product with a memorable name

The struggle of this balancing act was recently seen in the EUIPO appeal brought by MyForest Foods Co. when their registration for the trade mark ‘MYBACON’ was refused on examination.

Grounds for refusal

MyForest Foods Co.’s mark was for goods consisting of ‘Fungi-based meat substitutes; meat substitutes; prepared meals consisting primarily of meat substitutes including fungi-based meat substitutes.’

The examiner considered the dictionary definition for ‘bacon’ as ‘meat from the back and sides of a pig, dried, salted, and usually smoked’. The examiner found that there was a sufficiently serious risk that the relevant public would be deceived regarding the kind of goods being sold under the mark. The examiner contended that at least part of the relevant public would understand the mark as referring exclusively to meat from a pig and they could not ascertain whether the product contained bacon or not through inspection.

MyForest Foods Co. had argued that the term ‘bacon’ was also used for products made from other types of meat or substitute meats, such as turkey bacon. In addition, and due to the popularity of plant-based diets, the term ‘bacon’ had become a generic reference for these alternatives. In the examples given by MyForest Foods Co., additional information was affixed to the term ‘bacon’ when it was used as ‘turkey bacon’, ‘artificial bacon’, ‘vegetarian bacon’, etc. The examiner considered that the mark ‘MYBACON’ did not contain any additional information which would clarify what type of bacon it was.

The applicant had referred to other EU registered marks containing the word ‘bacon’, such as the marks ‘FEEL BETTER BACON’ and ‘BEYOND BACON.’ The examiner considered that the mark ‘FEEL BETTER BACON’ had no clear meaning in relation to the goods claimed. The examiner found that the term ‘BEYOND’ meant ‘more than’ and therefore indicated that the goods were not only meat, but something else. The examiner also found that ‘MYBACON’ would be clearly deceptive when used in connection with the fungi-based goods it had been applied for. The registration was refused.

MyForest Foods Co.’s appeal

MyForest Foods Co. appealed the decision. It argued that the ‘MY’ portion of the mark stood for ‘my own form’ bacon and consumers would perceive ‘MY’ as referring to bacon made from mycelium. They argued that the ‘MY’ prefix would indicate that the product is not a meat bacon, and therefore, no deception would take place. They clarified their argument that the term ‘bacon’ had become generic to describe rashers and slices and that the relevant public would perceive the mark in this way.

They also argued the term ‘bacon’ couldn’t be misleading for plant-based products, as the European Parliament had already rejected a proposal in 2020 to ban the use of meat denominations for other plant-based foodstuffs, such as ‘sausages’, ‘steak’ and ‘burgers’.

Board of Appeal decision

The Board didn’t find any difference between the mark and the sum of its two components, ‘MY’ and ‘BACON’. The Board considered that it was very unlikely that the average consumer would understand that the mark stood for ‘mycelium bacon’. It considered that the ‘MY’ prefix merely served to personalize the offer of MyForest Food Co.’s product.

The Board held that ‘MYBACON’ could reasonably be understood as meaning bacon, in the sense of the dictionary definition. MyForest Foods Co. failed to provide evidence that the term ‘bacon’ on its own, without further identifying information, had become generically known as a term for meat alternatives. The Board held that even if ‘bacon’ had become generic, the mark would not be successful at registration because the words ‘my bacon’ would simply be descriptive of products that look or taste like bacon.

While MyForest Foods Co. had provided examples of other foodstuffs proposing to be bacon, such as Quorn and Finnebrogue products, the Board considered that none of them carried the same serious risk that the average consumer would be deceived into purchasing the product thinking it was pork meat. This was due to the other brands containing caveats such as ‘meat free’ or ‘plant-based bacon’ on their labels, which the ‘MYBACON’ brand lacked. The Board also identified that consumers were likely to make a hurried purchase which would, without further clarifying indicators, lead to them being deceived into purchasing the fungi-based products.

The appeal was ultimately dismissed and the mark for 'MYBACON' has been refused registration.

Conclusion

With the rise in plant-based consumption throughout the EU and the flood of products to the market, the EUIPO are likely to see an increase in trade mark applications for such products. If brand owners want their applications to be successful, they will need to distinguish themselves from competitors and make sure their marks aren’t descriptive in nature, all while ensuring they are not vague enough to deceive consumers as to the nature of their goods. This is a balancing act, and unfortunately for MyForest Foods Co., their ‘bacon’ tipped the scale out of their favour.

For more information, please contact a member of our Intellectual Property team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.