The secret ingredient in the food industry

In trademark law, besides legislation, the case law is also very important. After all, a good understanding of the case law is required for a correct interpretation of the legal text. Moreover, this case law is always evolving, making it necessary to keep in touch with the latest cases. In this blog, we therefore highlight some recent cases in the food industry.

The Future is Plant Based

A first case concerns a trademark application for the slogan "The Future is Plant Based" in the EU. Although it is possible to register slogans as trademarks, in practice, trademark applications for slogans are often refused. The reason for this is that slogans often lack distinctiveness. After all, slogans mainly have an advertising function and only rarely serve to indicate the commercial origin of goods or services. However, when slogans do have a distinctive character, it is possible to register them as trademarks. But in this case, the trademark application was refused.

The trademark applicant then tried to argue that the term "future" is vague and can have multiple meanings in which, according to the trademark applicant, there would also be a conceptual contradiction as the term "future" is often associated with technology and not with plants. This would create a thought process among consumers, leading to distinctiveness. However, this argument was not accepted: the relevant public will not see any conceptual contradiction in this and the fact that a word is vague or has multiple meanings does not make the sign distinctive.

Metaverse food

Another case concerns the trademark application for the word mark "METAVERSE FOOD" in the EU. The applicant attempted to register this trademark for various foods, food supplements and beverages. The word "FOOD" in itself is clearly descriptive for these goods. Could the addition of the word "METAVERSE" provide a solution?

The answer is no: this sign could merely inform the public that these goods can be purchased in the virtual world. The office also points out the fact that the line between the real world and the virtual world has become more vague, and that there is an increasing connection between real and virtual goods.

Therefore, the trademark application was refused. The applicant’s argument that "METAVERSE" could only be descriptive for virtual goods and entertainment on their own (normally classified in classes 09 and 41, which were not included in this trademark application) is incorrect. For more on the Metaverse's impact on branding, see also our earlier blog.

HAVANNA SOCIAL

Finally, the third case concerns opposition proceedings initiated by the owner of an earlier EU trademark "HAVANNA" against a later trademark application for "HAVANA SOCIAL" in the EU. In these opposition proceedings, the opponent had to submit proof of use of his trademark. The evidence that the opponent was able to present concerned only two cafeterias in Barcelona. Nevertheless, this evidence was considered sufficiently significant to show evidence of use of the earlier EU trademark. The opponent was then able to successfully obstruct the later trademark application.

This decision is striking: a trademark owner who exploits only two cafeterias in one European city (not even in two different cities) can thus successfully prevent a later confusing trademark application for the entire territory of the European Union.

The cases above are showing once again how the case law is constantly evolving. Keep following our blog to stay up to date with the latest case law!