There has been much discussion recently about the types of names that are suitable for products that serve as a replacement for food of animal origin. The starting point in choosing product names, registering associated trademarks, and marketing these kinds of products is (1) that the name or the marketing claim must be true and (2) that it does not mislead the consumer.
National trademark offices examine the potential deceptiveness of marks in relation to products and services. For example, the Finnish Trademark Act provides that a trademark cannot be registered if the nature, quality, or geographical origin of the products or services it represents are likely to mislead the public. Also, an applicant´s competitors can oppose a potentially misleading trademark.
At the European Union level and based on EU case law, an application for the trademark LACTOFREE in class 5 for lactose was considered clearly misleading if the product itself actually contains lactose, since a consumer could assume that it would be lactose-free.
In addition to trademarks, food products are often marketed with various claims relating to particular features or qualities of the goods. Indeed, consumers of new products are influenced by claims about the product and associated images. Thus, information and marketing claims, such as “low fat” and “high fibre” must be clear, accurate and based on scientific evidence.
European Union rules on nutrition and health claims of such products are regulated by Regulation (EC) No 1924/2006 which went into effect on 1 July 2007. This regulation is the legal framework which is applicable to the food industry for highlighting particular beneficial health and nutritional effects of their products for product labels or in associated advertising.
Under this regulation in Finland, for example, marketing of food products is controlled by the Finnish Food Authority (the “FFA”) which was established on 1 January 2019. The FFA has established guidelines for certain municipal entities under its authority, such as health inspectors. Also, consumers are permitted at any time to report to the food supervision unit in the place of domicile of the company in question, any serious deceptiveness or false information concerning characteristics of a product.
CLEVER USE OF LANGUAGE OR MISLEADING MARKETING CLAIM?
In recent years, vegetarianism and vegan diets have become significantly more popular, which has forced food producers to adapt quickly and develop a variety of meat substitutes. This is quite a change from the past when vegetarians were served vegetable crepes, puréed carrot soup, or other more traditional and basic vegetarian dishes.
Today in Finland during the Christmas season, meat-free “ham” (“seitan ham”) is marketed to replace the traditional Christmas ham made of pork, and vegan smoked “salmon” made of carrots (“carrotlox”) is served instead of cold smoked salmon.
Recently there was a debate in the Finnish media about the food supervision unit´s demand that a food producer change the marketing of the products “Muu Burgerpihvi” (Muu Burgerpatty) and “Muu Kasvilihapulla” (Muu Vegetablemeatball) so that that the potentially misleading word “vegetablemeat” and other expressions referring to “plant-based meat” were not used. In addition, the authority ordered the company to indicate the food product on the packaging to comply with the food product regulation.
An appeal of this decision was filed with the Administrative Court and the case is still pending.
From the point of view of both an intellectual property professional and a consumer, it seems reasonable to conclude that “seitan ham” without an additional reference to the vegan product might mislead consumers. The food industry is constantly developing interesting and environmentally friendly items for consumers, and it is also engaged in the creative use of language (virtually all languages) to promote their products. But consider this: since we already accept the use of terms like the “flesh of fruit”, is it really that big of a leap to accept “vegetable meat”?
In light of the above, it is clear that the food industry is in the midst of interesting times. But it is also clear that a responsible company in this industry will ensure that for each of its products (1) the name or the marketing claim is true and (2) that it does not mislead the consumer. When the product packaging and marketing statements are true and do not mislead and when they clearly express what the product contains and what it does not, there is still plenty of room for creative wordplay.
In addition to my work as a lawyer advising our clients in their contentious and non-contentious intellectual property matters including trademarks, designs and domains, I manage our international relationships by participating in industry related organizations and conferences abroad.