Veganuary is back and the plant based food market is set to boom in the UK according to numerous sources. There are more ads highlighting the benefits of eating plants and with documentaries like Game Changers and Seaspiracy becoming incredibly popular, there have never been more reasons to go vegan. Many consumers are switching to the meat free or alt fish diets for ethical reasons, environmental reasons and health benefits. One consideration for businesses in this booming vegan market is the name and the trademarkability of the name for these popular alternative products. Below is a look at some of the issues to be aware of when considering brand names and trade marks when going plant based.
Play on words
One common form of name for plant based alternatives is a play on the name of the meat version. Think Faken instead of bacon, smoked Zalmon instead of salmon, Vuna for tuna and Vrimp for prawns (or shrimp). These names are well suited to their products. They do a good job of describing what they are – a not real version of what they sound like. Also the inclusion of “V” is likely to lead consumers to think that they are vegan. The downside is that they have a level of descriptiveness and by being marginally descriptive these words do not make good trade marks. By having a high level of descriptiveness they could lack distinctiveness (unless it is acquired at a later stage through use).
Trade Marks distinguish the origin of one product from another.
Think of two bottles of cola on the shelf in the supermarket – because of the trade mark COCA-COLA or PEPSI you know which business is responsible for the drink. The closer the trade mark is to the name of the product, the less distinctive it is initially.
Changing the first letter of a meat and creating the product builds a level of conceptual descriptiveness – Faken being a portmanteau of fake bacon. The same could be said of the fish products mentioned above and it will be interesting to see if any of these product names are not considered registrable because of it. Some marks are already registered. ZALMON is a registered trade mark for plant based alternatives to meat and so there could already be multiple products using the faux fish name. Nestlé have registered a trade mark for VUNA in classes 29 and 30, as well as SENSATIONAL VUNA – which can only mean that an amazing version of the plant based tuna is on the way. These examples show that the marks are registrable, but whether they will stand up to challenge is another matter.
Generic Trade Marks
How can marks avoid becoming the generic trade mark for their product class like Hoover or Velcro or Linoleum? Faken seems to be a good example of this. Although there is a UK trade mark for FACON, registered to a Danish company, there is no TM for FAKEN and unsurprisingly it is used to describe all imitation bacon products. If you do not want this to happen to your product name (and you do not!) consider taking some pre-emptive steps. Step one: Never let it be used for another similar product. Step two: Only allow its use as an adjective in your marketing and consider using it in conjunction with the product to which it relates: e.g. “Lego brick“, “Red Bull energy drink“, or “Vuna fish alternative“. Step three: always use a TM or R mark next to it.
McVegan vs McPlant
McDonalds recently prevented another business from registering the McVegan mark. It was able to rely on its family of “Mc” marks and the chance of confusion that consumers would have when ordering a McVegan burger. Despite McDonalds winning, it has gone in a different direction and has recently released the McPlant burger, perhaps highlighting the growing demand for plant based eating. These options show that there is limited distinctiveness in popular plant based marks.
Plant based brands fighting amongst themselves.
Once you have a good trade mark for your plant based brand, you’ll be keen to avoid it becoming generic (as mentioned above) or confused with a similar brand in the market space. Oatly recently tried to claim that consumers would be confused between OATLY and PUREOATY and claimed there was infringement of their mark. Glebe Farm, the family owned British oat milk producer which owned the PUREOATY trade mark argued that there was no likelihood of confusion and no attempt to gain an unfair advantage on the Oatly mark and the defence was successful. This is a good case to consider when defending a mark which has descriptive elements as PUREOATY highlighted that the majority of the OATLY was descriptive.
Protected Designations of Origin (PDOs) and Collective Trade Marks
Will the meat industry seek to protect the generic use of beef or continue with their campaign against non meat burgers? Prosecco had a win against the NOSECCO mark and vegan product designers should be aware of the list of PDOs as these products have a broader protection that TMs. Feta cheese is a good example and if NOSECCO gets into trouble then a VETA cheese may well not make it to the shelves (or at least not for long). “Stilnon” or “Manchegno” are likely to face similar difficulties.