The Court of Justice of the EU has confirmed that Myforest Foods Co. could not register "MYBACON" for their plant-based bacon.
Their Trade Mark Application was seeking protection in Class 29 for "Fungi-based meat substitutes; meat substitutes; prepared meals consisting primarily of meat substitutes including fungi-based meat substitutes."
The Examiner and the Board of Appeal refused registration on the basis that the mark was liable to deceive the public as to the nature of the goods in question.
In its evidence to try to overcome the refusal, the Applicant submitted the European Parliament's rejection of a restriction of the use of the terms 'burger', 'steak', 'escalope', 'hamburger' or 'sausage' exclusively to meat-based products (in the context of the common agricultural policy) . The Court found that EU labelling rules merely enabled citizens to obtain comprehensive information on the content and composition of food products and helped consumers to make an informed choice when purchasing foodstuffs. Offering consumers the opportunity to check the label of a product did not preclude the mark referring to those goods from being misleading.
Consumers making a hurried purchase who saw the mark MYBACON could conceivably be deceived and buy the goods in question instead of bacon made from pork. It was highlighted that vegetarian / vegan foodstuffs were found near to non-vegan / non-vegetarian foodstuffs in supermarkets and were packaged in a similar manner. Finally, the fact that most supermarket purchasing was habitual and that consumers placed little cognitive effort into the purchase of many everyday products was taken into account.
The Applicant also sought to demonstrate that that term "bacon" has evolved to designate not only pork meat products but also meat products from other animals or vegetarian or vegan products. The Court decided that this was irrelevant since the word continues to refer to pork meat products. Indeed, the deceptiveness objection applies even if a non-deceptive use of the mark is possible. Accordingly, the fact that the mark applied for might also be perceived in a way that is not misleading is irrelevant.
Finally, Myforest Foods Co. tried to argue that the word 'my' refers to mycelium and 'myco' (a prefix meaning 'fungi'), and also connotes the English first person possessive pronoun which, when combined with 'bacon', connotes a particular kind of bacon specifically developed or selected for 'me' and 'my' particular dietary requirements. The Board of Appeal found that 'my' was merely a laudatory addition which could not alter the deceptive nature of the word 'bacon' for the goods in question.
I wonder if Myforest Foods Co. will now update their website which, ironically, states "you'll double-check the label to make sure it's not meat"...
In the contested decision, in the light of the traditional definition of the word 'bacon' in the dictionary, the Board of Appeal found that there was a real risk that the relevant public would purchase the goods covered by the mark applied for, thinking that they were pork meat products, whereas, having regard to the description of the goods in question, they did not contain pork.
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