http://ipkitten.blogspot.com/2023/05/is-inverted-cow-vegan.html
With decision
issued on 8 May 2023, the EUIPO refused an application
for registration of the image of an inverted cow for products excluding the
presence of meat, such as meat substitutes, protein for the use in industrial
manufacturing of food products and related engineering services.
Facts of the case
On 30 December 2020, Redefine Meat Ltd. (the
applicant) obtained the international registration No 1600229 consisting of the
image of an inverted cow for goods and services in classes 1, 7, 29, and 42.
The international registration was then
notified to the EUIPO. The examiner issued a provisional refusal of protection
on 3 February 2022. The applicant appealed. On 19 August 2022, the Board of
Appeal annulled the contested decision and remitted the case back to the
examiner for procedural issues, thus without entering into the merit.
The decision
With this (new) decision the examiner
provisionally refused (again) protection, with the sign being deceptive and lacking
distinctive character.
a) Deceptive character
The sign was considered ineligible for
registration because it is likely to deceive consumers when used in relation to
the goods and services for which protection was sought. The figurative element
(the inverted cow) would be understood by the relevant consumer as an inverted
picture indicating a fully grown, domesticated cow. The examiner held that,
even if the image of the cow is inverted, it would not depart from the features
of how a cow is commonly portrayed and it would be seen as an indicator that
such goods are cow-related or derived from cow.
b) Lack of distinctiveness
The sign would be also ineligible for
registration because it is devoid of any distinctive character for the goods and
services for which protection is sought. The examiner held that the sign would
not be seen as a badge of origin since a cow would be seen as an indicator that
such goods are cow-related or derived from cows. The examiner also relied on an
internet search showing that the image of a cow is often used in relation to
the objected goods in the market.
Comment
The increase of demand for vegan products has
resulted in companies increasingly claiming that their products are vegan. The use of
vegan trade marks can become a trusted indicator of such kind of
products for consumers. Nevertheless, deceptive indications cannot enjoy
protection.
The issue is not yet fully resolved. On 10
November 2022, the Zurich
Administrative Court stated that the usage of nomenclature including “chicken”
to describe meat-free foods is not deceptive. According to the Swiss Court the
presentation of the food packaging, which boasts a “V” symbol denoting that the
items are vegan, means that the use of animal names is not creating confusion
among consumers.
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