Battle of the vegan brands: Meatless Kitchen v Meatless Farm

As more than half a million Brits approach the mid-way point of Veganuary, plant-based alternative foods might be in the shopping baskets of more customers than usual. But would you expect products bearing a ‘MEATLESS’ brand name to come from only one company? The UKIPO had to decide on this very issue in a recent case relating to the competing MEATLESS KITCHEN and MEATLESS FARM marks.

The MEATLESS KITCHEN v MEATLESS FARM case[1] is a topical reminder that a finding of similar marks and similar or identical goods does not automatically lead to a finding of likelihood of confusion and the rejection of a trade mark application. In this case, the focus was on the shared MEATLESS element. Ultimately, there was held to be no likelihood of confusion. The similarity of marks was down solely to this shared element, conceded by both parties to be descriptive, with the second elements in each mark and their overall impressions being so strikingly different as to avoid confusion.

Background

In March 2021, Hain Frozen Foods UK Limited (“Hain”) filed a trade mark application for MEATLESS KITCHEN seeking protection in respect of various meat and fish substitutes in Class 29.

In July 2021, The Meatless Farm Limited (“Meatless Farm”) opposed this application on the basis of likelihood of confusion with its MEATLESS FARM trade mark, as well as on the basis of its reputation and passing off (though these additional grounds were later dropped).

The Law

In order to succeed in an opposition under Section 5(2)(b) of the Trade Marks Act 1994, it is necessary for the opponent to establish that:

1. the mark applied for is identical with or similar to the earlier trade mark;
2. protection is sought for goods or services similar to, or identical with, those for which the earlier trade mark is protected; and
3. there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.

Decision

In this case, there was little debate over the goods at issue. These consisted largely of plant-based alternative foodstuffs in Class 29 and were accepted to be identical or similar to the goods covered be Meatless Farm’s earlier trade mark. The majority of the Hearing Officer’s analysis focused on the similarity of marks and whether there was a likelihood of confusion.

Similarity of Marks

MEATLESS FARM and MEATLESS KITCHEN were held to be visually, phonetically and conceptually similar. The Hearing Officer considered both marks to hang together as conceptual units, with MEATLESS FARM being perceived as a farm with no meat, and MEATLESS KITCHEN being perceived as a kitchen that has no meat in it.

Average Consumer

The average consumer was held to include those following specialist diets, or following a strict vegan or vegetarian diet, but also the general public looking to reduce their intake of meat. The Hearing Officer decided the purchasing act would be primarily visual, with consumers paying no more than a medium degree of attention.

Distinctive character of the earlier mark

Whilst Meatless Farm attempted to claim its MEATLESS FARM mark had enhanced distinctiveness through extensive use, it did not evidence this claim, so the Hearing Officer only considered the inherent distinctiveness of the mark.

The Hearing Officer concluded that the word ‘MEATLESS’ has a directly descriptive relationship to the goods at issue, noting that both parties acknowledged in their evidence and submissions that the term is a synonym for meat-free. ‘FARM’ was also descriptive/non-distinctive. The Hearing Officer held that the distinctiveness of MEATLESS FARM lies in the combination as a whole, bringing to mind a farm with no animals or meat. Meatless Farm attempted to argue that this was unusual as such a concept is “against societal norms”, but the Hearing Officer was not convinced, considering the concept of a meatless farm being uncontentious and akin to an arable farm. Overall, the mark had at least a minimum degree of distinctive character, but no enhanced distinctiveness.

Likelihood of Confusion

The Hearing Officer conducted a multifactorial assessment of the likelihood of confusion, considering inter alia the predominantly visual nature of the purchasing act and the interdependency principle, whereby a greater degree of similarity of goods can offset a lesser degree of similarity between the marks. The Hearing Officer indicated that a strict application of all the relevant principles would indicate that the marks at issue would indeed likely be confused. However, in the Hearing Officer’s view, “coming to such a conclusion would be flawed, and too heavily reliant on a formulaic and artificial adherence to the wording of the principles, rather than a balanced and realistic assessment of the perception of the marks in the minds of the average consumers”.

The decision goes on to consider how to properly treat two marks which overlap only in relation to an element which has been found to be entirely descriptive of the goods.

The Hearing Officer concluded that average consumers would not see MEATLESS as playing an independent and distinctive role within each mark. Consumers would see the word as descriptive.

The Hearing Officer held that the common MEATLESS element “is not so strikingly distinctive (either inherently or through unsubstantiated use) that the average consumer would assume that no-one else but the brand owner would be using it in a trade mark at all”. MEATLESS KITCHEN would not be perceived as a logical brand extension either. As such, the average consumer would not misremember MEATLESS FARM and assume that MEATLESS KITCHEN products are provided by the same or economically linked undertaking simply because they both contain the entirely descriptive word MEATLESS. There was no direct confusion. The shared common element was not considered sufficient for a finding of indirect confusion either. As such, Hain’s application was allowed to proceed to registration on 23 December 2022.

Comment

The MEATLESS FARM v MEATLESS KITCHEN case is a helpful example of how to treat the issue of marks which share common descriptive elements. This has been assessed previously by the UK and EU courts in relation to the words “flex(i)”[2], “origin(s)”[3] and “European”[4]. It is an established principle that a likelihood of confusion is not automatically precluded by virtue of the marks only having in common a descriptive word. However, descriptive and non-distinctive elements are given less weight when comparing marks, so if the only similarity between the marks is a common element which is descriptive or non-distinctive, that points against there being a likelihood of confusion.

Owners of marks with descriptive elements should bear this case and the prior authorities in mind when looking to enforce their rights. It may be an uphill struggle. Evidence of enhanced distinctiveness will assist in tipping the balance in favour of the earlier right, as will evidence of a reputation, where this is available. Brand owners of marks with descriptive elements may, however, have to accept that their monopoly does not extend to certain elements of their marks and adopt a more focused enforcement strategy.

Businesses at the early stages of brand development should also bear this issue in mind. Adopting a trade mark that ‘does what it says on the tin’ may be attractive from a marketing perspective. However, this should be balanced against potential difficulties further down the line in enforcing the brand and a somewhat limited monopoly.

[1] BL O/950/22, Decision dated 1 November 2022

[2] L’Oréal SA v OHIM, Case C-235/05 P

[3] Whyte and Mackay Ltd, v Origin Wine UK Ltd [2015] F.S.R. 33

[4] European Ltd v Economist Newspapers Ltd [1998] E.M.I.R. 536 [1998] FSR 283