Nestle lost another battle against IMPOSSIBLE BURGER

Nestlé’s battle against IMPOSSIBLE BURGER has faced another fail recently. As this blog informed last year, the District Court in The Hague imposed a ban on Nestle to use its brand INCREDIBLE BURGER finding it similar to the early registered EU mark IMPOSSIBLE BYRGER. This mark is used by the US company Impossible Foods for burgers made of meat substitutes.

As part of its defense strategy Nestle initiated an invalidation proceeding against the earlier mark before the EUIPO. According to the company, this mark is not distinctive for the relevant goods that it covers. For Nestle, this marks means a burger that one thought could not possibly exist. What’s more the sign can be perceived as a promotional, laudatory message.

The EUIPO disagreed and dismissed the invalidation in its entirety. According to the Office the phrase IMPOSSIBLE BURGER is not directly descriptive for burgers, on the contrary it posses some negative connotations. It is suggestive trademark and from this point of view can be protected.

The Office considered that Impossible would not related to an impossible product as a quality or other characteristics but as a qualifier of a specific noun. The consumers can perceive this phrase as an amusing  catchwords or pun. Form that perspective the mark is not either a promotional or laudatory  slogan.

This case is a good example for the so-called suggestive trademarks. They have a meaning but it can be found out by consumers only as a result of mental process, not directly. These trademarks can be registered although sometimes this can be tricky.

Source: Loretta Dashorst – Novagraaf за Lexology.


Whether INCREDIBLE BURGER is similar to IMPOSSIBLE BURGER – Nestle faced some problems in the EU

The Court in Hague, Nederland, has issued a provisional pan-EU ban against a meat burger made of plant produced by Nestle, which uses the name INCREDIBLE BURGER.

The reason for this was a registered EU trademark for IMPOSSIBLE BURGER owned by the US startup company Impossible Burger that offers food products imitating meat.

Against this mark Nestle initiated a cancellation procedure before the EUIPO based on descriptiveness and lack of distinctiveness for the relevant products.

Meanwhile, the US company responded with a lawsuit in Nederland.

The Court came to a conclusion that the Nestle’s INCREDIBLE BURGER is similar enough to still registered EU trademark IMPOSSIBLE BURGER from a phonetic, visual and partly to a conceptual point of view.

The another thing that led the Court to consider a possible immigration of the IMPOSSIBLE BURGER mark was the fact that both companies were in licence negotiations which, however, failed. In the process of these negotiations Nestle acquired some confidential and sensitive information from the US startup regarding the mark and the product.

Nestle considers to change its product name to Sensational Burger in an attempt to distinguish it from INCREDIBLE BURGER.