As January 2021 draws to a close, we reach the end of both dry January and Veganuary. Whilst the former is intended to motivate abstinence from alcohol for a whole month (impressive at any time, let alone mid-pandemic), Veganuary is an initiative aimed at introducing a plant based diet and lifestyle to a wider audience.
Somewhat co-incidentally, January 2021 is also the month in which a decision of the General Court of the European Union handed down its judgment in an appeal lodged by Oatly who, for the uninitiated, are a bit of a powerhouse in the plant based food industry.
‘IT’S LIKE MILK BUT MADE FOR HUMANS’
In 2019, Oatly had applied to register ‘IT’S LIKE MILK BUT MADE FOR HUMANS’ as a European trade mark. Registration was sought in a variety of classes including Class 29 and Class 32. Both classes included a wide range of goods, which, generally speaking included plant based alternatives to foodstuffs and beverages that would usually contain cow’s milk e.g. ‘milk substitutes containing oats,’ ‘oat based butter substitutes’, ‘oat-based cake mixes’ and ‘non-dairy ice cream.’
The examiner at the EU Intellectual Property Office (EUIPO) rejected Oatly’s application in respect of these classes and their decision was subsequently upheld by the EUIPO’s Board of Appeal. In rejecting Oatly’s appeal, the Board made a number of findings including that:
- The first part of the mark (‘it’s like milk’) indicated that the goods were or contained milk substitutes and that the second part (’but meant for humans’) made clear that the goods were more apt for human consumption; and
- In light of the goods in issue, the mark would be understood as a laudatory promotional slogan, rather than as an indication of the commercial origin of the goods. The board highlighted the fact that some consumers were lactose intolerant or vegan, that the mark indicated the positive aspects of the goods (similar to milk but specifically made for humans and not baby cows, baby sheep or baby goats).
The Board decided that ‘IT’S LIKE MILK BUT MADE FOR HUMANS’ was incapable of performing the function of a trade mark and so, was devoid of distinctive character. Having made that assessment, the Board dismissed Oatly’s appeal.
Appeal to the General Court
Oatly then appealed to the General Court, who reversed the Board of Appeal’s decision; in so doing it agreed with the submissions made by Oatly that the Board had erred. There are a number of points to note from the decision (including the reiteration that, just because a mark is a slogan, this does not of itself preclude its registration) but perhaps most interesting is the discussion regarding how perception of the mark is to be assessed.
Whether a mark has distinctive character will be assessed from the standpoint of the relevant public; who is the relevant public in a case such as this?
Oatly alleged that the Board had made a mistake in taking into account consumers who were lactose intolerant, allergic to milk or vegan; the Board should have taken into account the general public’s perception of the mark and not those who held ‘extreme’ or ‘minority’ opinions (Oatly’s representative’s words, not mine).
In making this argument Oatly referred to a persistent and popularly held opinion/myth about milk that the vast majority of (non-vegans) would ascribe to – namely that cow’s milk is a healthy and nutritious food staple for humans.
In so doing, Oatly argued that the general public would consider that cow’s milk is for human consumption, not for baby cows; consequently ‘IT’S LIKE MILK BUT MADE FOR HUMANS’ would be controversial to the general public, as it would be seen as questioning whether cow’s milk was in fact something that people should be consuming.
The General Court accepted this argument and noted the evidence adduced by Oatly as to the controversy that had been stirred up both in Sweden and the UK, when Oatly ran a marketing campaign using the mark.
The General Court considered that although vegans, etc., were part of the relevant public for the purposes of assessing perception of the mark, that they did not share the belief that cow’s milk had a proper part in the human diet would not preclude the mark from having distinctive character. This was because that part of the relevant public would be aware of the commonly held belief and so like the ‘other’ relevant public (i.e. the non-vegans) would perceive the message conveyed, i.e. one that calls into question this belief. In view of this, the Court found that, because the mark would set off this cognitive process in the minds of the relevant public, it had distinctive character and as such, should be registered.
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