Not Frying So High: EU General Court Rejects “MYBACON” Trade Mark Appeal

Introduction 

Food company Myforest Foods Co. sought to register the trade mark “MYBACON” for its plant-based food product. Both the European Union Intellectual Property Office (EUIPO) and the EUIPO’s Board of Appeal rejected its application on the grounds that  the mark is deceptive (Myforest Foods Co. v EUIPO, Case T‑107/23). Determined to press on with its appeal, Myforest brought the case before the EU General Court (GC) but it has been unsuccessful. The EU General Court agreed with the EUIPO that the mark “MYBACON” was likely to mislead the public about the characteristics of the products to which it was to be applied, which were plant-based meat substitutes.

The grounds of appeal

Myforest relied on three pleas to contest the decision of the EUIPO Board of Appeal (the “Board”):

1. Infringement of Article 7(1)(g) of the EU Regulation 2017/1001 on trade marks (the “Regulation”) – Misleading marks
2. Infringement of Article 94(1) of the Regulation – Provision of reasons for refusal
3. Infringement of Article 95(1) of the Regulation – Reversal of burden of proof on “deception”

The first ground – Misleading marks

Myforest argued that the Board wrongly rejected its trade mark application under Article 7(1)(g), which allows refusal based on the likelihood of misleading the public. It cited the case of La Irlandesa 1943 which provides that the trade mark must specifically designate potential characteristics of the goods it represents, meaning it can only be misleading if it suggests specific characteristics the product doesn't actually have.

Myforest argued that the Board:

• wrongfully defined the “relevant public”. It said the Board should have considered only consumers familiar with plant-based meat substitutes, who are more attentive to product information and less likely to be misled. The Board, however, defined the relevant public as the average reasonably well-informed, reasonably observant and cautious English-speaking consumer who buys everyday food products quickly and may not pay close attention to labels, potentially leading to confusion about the product's nature.
   
• should have used factual evidence to understand the market reality, consumer habits, and perceptions regarding plant-based food products. In Myforest’s view, the Board’s failure to do this meant it then falsely found a contradiction between consumer expectations and the actual nature of the product. In response, the Board again cited Myforest’s incorrect definition of “relevant public” and the inaccurate claim that the Board had given inadequate reasoning for its findings.
   
• reversed the burden of proof so that Myforest had to demonstrate the term "bacon" had become generic for non-pork products, which it sought to do by using dictionary definitions and examples of "turkey bacon" and "vegan bacon" as evidence. The Board countered that even if "bacon" could have non-deceptive interpretations, if it also carries a deceptive meaning, the trade mark can still be rejected. The Board noted that Myforest's examples still used the term "bacon" with qualifiers, suggesting the word retains its original association with pork.
   
• wrongly concluded that the “MYBACON” trade mark was deceptive, despite the prefix “my”. Myforest argued that this prefix altered the meaning of the mark and prevented deception, pointing to other accepted trade marks like "BEYOND BURGER" and "IMPOSSIBLE MEAT." Myforest claimed that informed consumers familiar with "mycelium" (the product's ingredient) would understand “my” as a shortening of this. However, the Board maintained that the average consumer would not interpret "MY" as an abbreviation, and that even if some consumers did, "MYBACON" could still be misleading. It emphasised that unlike other trade marks which use qualifying words to indicate that the product is not made of meat, "MYBACON" lacked such indicators, making it potentially deceptive to the average consumer.

All of these arguments were rejected by the GC.

The second ground – Inadequate reasons given for the Board’s findings

Myforest further argued that the Board had breached Article 94(1), which requires it to give reasons for its decisions. It claimed the Board:

• failed to consider relevant evidence: Myforest submitted a press article about the Board rejecting restrictions on terms like "burger" for plant-based products, which it believed demonstrated the evolving understanding of these terms. The Board argued this evidence was irrelevant to the specific trade mark in question and focused on food labelling, not trade mark law.
   
• did not properly explain why the trade mark was deceptive:  Myforest argued that the Board did not demonstrate a clear inconsistency between the trade mark's message ("bacon") and the product's characteristics (plant-based). In contrast, in the initial appeal the Board had found that "MYBACON" strongly resembled "bacon" and carried a serious risk of consumers believing the product contains pork, despite its actual nature. The GC concluded that the Board had clearly explained that there was a sufficiently serious risk of deception.

On the basis of the above, the second plea was also rejected by the GC.

The third ground – Incorrect application of evidential burden to prove “deception”

Finally, Myforest argued that the Board had not correctly assessed the risk of deception. It relied on Article 95(1) of the Regulation which states that the EUIPO “shall examine the facts of its own motion” where a mark is refused on absolute grounds. Myforest complained that the Board had incorrectly based its rejection of the trade mark application solely on Myforest’s evidence (or, more accurately, the lack of evidence) that the mark was not deceptive, and the Board had therefore not shown that the mark was (or was likely to be) deceptive. Myforest argued that this amounted to the Board essentially reversing the burden of proof by requiring the applicant to “prove a negative”. The GC noted that this ground of appeal had already been rejected, and confirmed there was nothing improper about the Board requiring the applicant to positively demonstrate that the term "bacon" had become generic for non-pork products, which it had failed to do.

This third plea was also dismissed by the GC and accordingly the entire appeal failed.

Comment

The Court’s decision highlights the challenges faced by companies marketing plant-based alternatives when using terms traditionally associated with animal products. It demonstrates the importance of strict adherence to trade mark guidelines and greater clarity, to avoid misleading consumers.

It also emphasises that the "relevant consumer" for assessing the potential for deception is the average consumer of everyday foods and not informed consumers of plant-based alternatives.

Additionally, even if a term can have non-deceptive meanings in certain contexts, a trade mark incorporating that term can still be rejected if its use results in  a risk of misleading consumers about the product's characteristics.

The ruling also shows that trade mark law takes a broader and more subjective approach to preventing deception compared to other regulations, such as food labelling. Despite a shift in consumer preferences and perceptions in the food industry, marketers of plant-based food products should still avoid adopting brand names containing terms whose traditional meaning would indicate a meat product to the average consumer.

Co-authored by Honor Kunisch White, Trainee Solicitor