RPC Bites #40 - McDonald's wins opposition and dips into Non-Fungible Tokens, border checks on animal and plant-based imports delayed again and the Food and Drink Federation releases its Net Zero Handbook

Welcome to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of some key legal, regulatory and commercial developments in the Food & Drink sector over the last fortnight… with the occasional bit of industry gossip thrown in for good measure. Enjoy!!

McDonald's prevails in McVegan dispute

McDonald's has successfully defended its 'Mc' branding following an application by Children's Cancer Aid Limited (CCA) to register 'MCVEGAN' as a trade mark (the Application). The Application was filed in classes 29, 32 and 33 for a range of meat-alternatives, health foods and vegan drinks. The products were to be made using Scottish produce, with the proceeds of sale used to support families affected by childhood cancer. A director of the CCA also planned to create a McVegan character for a book and cartoon series in which the products were to be promoted. 

McDonald's opposed the Application based on its portfolio of earlier 'Mc' prefixed trade marks. Although McDonald's does not currently use 'McVegan' to promote its plant-based range in the UK (opting to use 'McPlant' instead), it does use the term in European outlets. 

The UK Intellectual Property Office (UKIPO) found in favour of the fast food giant, refusing the Application on the basis that the repute and distinctiveness of McDonald's' earlier family of marks would result in confusion amongst a significant number of consumers. The UKIPO hearing officer also considered it "implausible" that the Application had been filed for any purpose other than to obtain financial benefit from McDonald's and stated that the application constituted a "paradigm example of bad faith." 

The decision is a useful reminder that even where an applicant has good intentions per se (in this case, to raise money for a children's cancer charity), the UKIPO will assess 'bad faith' in a purely trade mark sense, and will not hesitate to refuse applications which it regards as contrary to the absolute grounds for refusal of registration under section 3 of the Trade Marks Act 1994.

Net Zero handbook for the Food and Drink Sector

On 9 November 2021, the Food and Drink Federation (FDF) launched its 'Achieving Net Zero' handbook (the Handbook), in a bid to guide food and drink manufacturers towards achieving net zero carbon dioxide emissions (or 'carbon neutrality'), by 2040.

Published to coincide with COP26, the Handbook will be an important tool for all food and drink stakeholders across the farm-to-fork supply chain. Minister of State for the Department for Environment, Food and Rural Affairs, Victoria Prentis MP, applauded the Handbook, describing the food industry as the "vanguard of the nation's efforts to reach Net Zero." 

The Handbook can be accessed here. 

In honour of its 40th birthday, McDonald's' McRib burger becomes a Non-Fungible Token (NFT)

The blockchain craze continues with McDonald's being the latest corporate to get in on the action. NFTs have been grabbing headlines from some time now and the buzz around them seems to be increasing by the day. For those who haven't heard, NFTs are unique crypto-assets that are part of the Ethereum blockchain, or in plain English, they are unique and non-interchangeable digital tokens. Each NFT has its own inimitable digital signature (much like an original work of art) and their exclusive nature means that they have the potential to create cachet, drive demand and increase the value of goods. 

NFTs are beginning to hit the food and drink sector as restaurant brands seek novel ways to promote their products. A recent example is McDonald's' McRib burger. In honour of the product's 40th anniversary, McDonald's offered fans the chance to win one of ten McRib NFTs, via Twitter and participating stores. 

Whilst some are sceptical about NFTs (owning one does not prevent copies of the digital content in question being reproduced), if the tokens can attract sufficient interest, we may be seeing the emergence of a new form of marketing. 

Third time lucky for border checks on animal and plant-based goods

In Issue 38 of RPC Bites, we reported on the Government's revised timetable for controls on food and farming goods imported into the UK from the EU. Parts of that timetable have been extended once again, as the Government has confirmed that sanitary and phytosanitary (SPS) import controls on animal and plant-based goods will be introduced, on a staggered basis, from 1 July 2022. 

Whilst the details of the staggered approach are yet to be released, some industry sources are reportedly frustrated by the Government's third delay. However, according to DEFRA, the postponement is reflective of a pragmatic approach to "allow more time for businesses to recover from the pandemic” and is not an indicator of any lack of readiness to introduce the controls on time.  

Despite the extension, pre-notification of SPS goods will still need to be provided by importers from 1 January 2022.

Morrisons apologises for food labelling fowl-up

A Morrisons chicken crown labelled "British chicken and non-EU salt and pepper" has sparked a debate about the politicisation of food.

UK labelling rules state that foods which are labelled 'British' (by either words or the inclusion of a Union Jack) must clearly state the origin of any primary ingredients which derive from elsewhere. Current Government guidance stipulates that meat products from outside the EU must be clearly described as such and, from September 2022, labels will be required to state if a product is 'non-UK'.

Despite assurances from Morrisons that the label was a mistake and that it was simply trying to follow the relevant guidance, certain customers expressed their anger, describing the packaging as anti-EU and "petty". Some even went a step further and elected to boycott the supermarket over the issue.

Morrisons has apologised and promised to immediately update the chicken crown packaging, admitting that the label was a mistake and emphasising that it had no intention of providing "political commentary".