Consumer demand leads to key trademark rulings

Trademark applications on the rise in the food and drink sector

By Alison Bryce
Alison Bryce is a partner on the intellectual property and technology team at Dentons.

Which areas of the food and drink sector are seeing increased consumer demand?

Increasing numbers of customers are looking for more localised and healthy offerings. Within the food and drink sector, growth is happening among craft gins, independent breweries and in particular vegetarian alternatives and “free-from” versions of foods.

During lockdown it was found that one in five Britons reduced their meat intake, according to a recent Vegan Society study. The launch of the Gregg’s vegan sausage roll saw sales top £1bn for the first time and Nestlé has estimated its meat-free business will hit $1bn in the next decade. These figures support the identification of vegan products as one of the fastest growing sectors within food and drink.

How has consumer demand affected trademark applications and disputes?

Consumers are hungry for greater variation within supermarkets and businesses are turning to intellectual property rights to protect their products.

Between 2018 and 2019 the number of trademark applications increased by 12.9%. With the IPO receiving a record 107,527 trademark applications in 2019. Within the food and drink sector specifically, an analysis of 100 IPO trademark decisions shows approximately 28% were related to food and drink products.

According to research carried out by EMW LLP there was a 128% surge in new trademarks registered for vegan food in the UK last year.

As more businesses turn to trademarks to protect their new products there has been a surge of related disputes.

What are the recent trademark decisions that businesses should pay attention to?

Understanding where businesses have been unsuccessful in the past will help you secure your brand’s identity going forward.  With growing numbers of products in an already overflowing food and drink sector, businesses must remain vigilant in their efforts to protect their new ideas.

  • Nestlé and Impossible Foods. Earlier this summer, we saw an important dispute between the food giant and the American start-up. The Dutch court ruled against Nestlé’s plant-based ‘Incredible Burger’ declaring the product an infringement of the Impossible Food’s trademark ‘Impossible Burger’. The Incredible Burger was visually too similar to the Impossible Burger and the court held the similarity would confuse consumers. Nestlé carried out a re-branding.
  • Within the alcoholic drinks sector we saw Consorzio, a collective of prosecco producers, successfully prevent the approval of trademark ‘NOSECCO’. The trademark prosecco enjoys an increased geographical protection. The court decided there was a serious risk that consumers may confuse NOSECCO for a non-alcoholic prosecco, which it does not meet the requirements to be. The French owned, non-alcoholic sparkling wine brand was denied the ability to register the trademark in the UK.
  • Last year gluten-free food-tech company ‘Lo-Dough’ failed to prevent the trademark approval of ‘No Dough’. This case emphasizes that when traders choose marks with little to no distinctiveness, they have to tolerate use by third parties.
  • In 2019 company NIX lost its trademark after it was shown that the mark was unused for five years. As a result, alcohol-free brand Nix&Kix were allowed to use the existing mark for their alcohol-free and reduced-alcohol beer.

These decisions emphasize that lack of differentiation leads to low protection. They offer a warning for all businesses in this challenging market that the law is changing.  When it comes to trademarks, we are moving towards an approach where you either use them or lose them. 

What does this mean for businesses going forward? 

  • In such a crowded market, trademarks are a vital element of brand protection. They are an efficient communication tool to help your business capture consumer attention and make your products stand out.
  • Do your research. Failing to research a name or logo before adopting can lead to denial of registration or infringement of another’s intellectual property rights.
  • As a result of the global pandemic online purchases have greatly increased. Your company’s domain name may be more important that the sign above an actual storefront. Consider the areas where your business may benefit from this protection.
  • Brands need to be more creative than ever. The more you differentiate your brand, the easier it will be to protect. Consumers are looking for greater variety and going forward brands must remain innovative and adaptable.
  • Expectation of more trademark disputes. As this area of the food and drink sector continuous to flourish we expect to see more trademark disputes hitting the front covers.

Do you have a business, property or legal question or issue that you would like to know more about? Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email