From This Isn't Bacon Plant-Based Rashers, to Violife Smoky Cheddar Flavour Slices, a quick glance around the supermarket will make it very clear that many producers of substitutes for animal products like to reference the animal counterpart in their branding.
In this blog we will look at some of the terminology and imagery you need to avoid and how you can ensure you select an inherently registrable trade mark, compliant with UK and EU law.
Avoid deceptive terminology
Trade marks will not be registrable in the UK and EU if they are liable to deceive the public, for example as to the nature of the goods covered by the application.
In July 2024, the European Union Intellectual Property Office (EUIPO) refused applications by Happy Ocean Foods GmbH to register the marks SHRYMPS and FYSCH for seafood and fish substitutes on the basis that consumers would understand these words to have the same meaning as shrimps and fish and, as a result, the marks would be deceptive when used for fish and seafood substitutes.
We can contrast this to existing registered trade marks like BEYOND MEAT of Beyond Meat, Inc. and IMPOSSIBLE MEAT of Impossible Foods Inc. The difference appears to be that the words BEYOND and IMPOSSIBLE tell the consumer that the goods are something more than or other than meat.
Imagery can be problematic too, according to the EUIPO’s decision in May 2023 to reject Redefine Meat Ltd’s application for the following figurative mark of an inverted cow for meat substitutes.
The examiner concluded that the mark was likely to deceive consumers as it “conveys a clear and unambiguous indication that the goods… originate from cows”. They said that “the general public, when confronted with this sign in a chest freezer in a supermarket, for example, might assume they were purchasing meat”.
Whilst the above cases are EUIPO cases and not binding in the UK, it is highly likely that similar principles would be followed. Having said that, the inverted cow figurative mark was accepted in the UK and is now registered, including for meat substitutes, so there is some inconsistency.
Nevertheless, it is reasonable to conclude that when selecting a brand name or logo for your vegan product in the UK and EU, you need to make sure that the overall impression created by the mark is not misleading or likely to deceive consumers about the nature of your product, i.e. make them think it could be an animal product. To be inherently registrable, it needs to be clear to the relevant consumers that the product is a substitute for, or otherwise different from, the animal product.
Avoid terminology reserved for animal products
You also need to be mindful that some terminology is reserved solely for animal products.
In 2017, the Court of Justice of the European Union held in Case C-422/16 Verband Sozialer Wettbewerb eV v. TofuTown.com GmbH that the terms milk, whey, cream, butter, cheese and yoghurt cannot be lawfully used to designate a purely plant-based product. This is prohibited by EU Regulation No. 1308/2013, which states that certain definitions, designations or sales descriptions can only be used for the marketing of a product which conforms to specific requirements. This Regulation is applicable in the UK as well as the EU.
Then more recently, the UK Court of Appeal concluded that the mark POST MILK GENERATION was not validly registered because the use of MILK in this mark is contrary to the Regulation. It said that the Regulation prohibits the use of milk and other terms like butter, cream and cheese in trade marks used for non-dairy products, not just as generic terms, unless the use falls within certain permitted exceptions based on traditional use or describing a characteristic quality of the product (examples of permitted terms include coconut milk, salad cream and peanut butter). For a more detailed summary of this case see our recent blog Court of Appeal overturns decision in POST MILK GENERATION.
From these two cases we can see that you should not include any protected descriptive terminology in the branding of your product, even where it is not a reference to the type of product, unless the use falls within the permitted exceptions.
Avoid descriptive terminology
Trade marks will not be registrable in the UK and EU if they consist exclusively of signs or indications which designate the kind, quality, quantity, intended purpose, value, geographical origin, the time of production, or other characteristics of the goods.
The EUIPO previously rejected an application for VROMAGE by Youssef Fakhouri in so far as it covered imitation cheeses, on the grounds that it represents a merging of the words vegan and fromage (French for cheese) and would therefore be seen by those with a basic understanding of French as meaning vegan cheese.
For similar reasons, an EU application by individual Wu Xiang for the mark Zeroegg was rejected for egg substitutes.
Whilst the above cases are EUIPO cases and not binding in the UK, it is highly likely that similar principles would be followed. Therefore, if you intend to use terminology in a trade mark which references the animal counterpart (and is not contrary to the Regulation) you need to ensure that the mark as a whole departs sufficiently from the meaning of the original, for example because the meaning isn’t immediately obvious, there are additional distinctive elements, or the mark is particularly creative, surprising or unexpected.
Be mindful of geographical indications
In the UK and EU there are some special types of protection available for food and drink products.
A protected geographical indication (PGI) indicates that at least one of the stages of production, processing or preparation takes place in a particular geographical area, e.g. “Yorkshire Wensleydale” and “Scottish Wild Salmon”.
A protected designation of origin (PDO) indicates the product is produced, processed and prepared in one area, e.g. “Cornish Clotted Cream” and “Blue Stilton Cheese”.
PDOs and PGIs are protected against a variety of misleading behaviours, including:
- direct or indirect commercial use of that protected name for comparable products not complying with the product specification;
- any misuse, imitation or evocation of the protected name; and
- any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product liable to convey a false impression as to origin.
A producer of vegan substitutes for dairy products might be tempted to avoid the terminology prohibited by the Regulation, such as cheese, by using a term like Stilton or Feta instead. However, doing so is highly likely to infringe the geographical indication.
By way of example, the EUIPO rejected an application for 
by ALIMENTIAS EMC, SL for cheese substitutes based on conflict with the PDO “Queso Manchego”, stating that the shared suffix “chego” is sufficient to evoke the PDO given the proximity of the goods (i.e. cheese and cheese substitutes).
For more on how evocation of geographical indications has been interpreted in the UK and EU, see our previous post Geographical indications: the evolving scope of evocation.
More on branding vegan products
For more information on branding your vegan products, see our previous blog post Veganuary: vegan branding – more than meats the eye which discusses the use of the term vegan, and various VEGANUARY and vegan logo marks.
