RPC Bites #62: misleading 'freshly baked bread' claims, trademark troubles for Campari and McDonalds and more

Welcome back to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of the 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.

Trademark beef: EU General Court partially revokes McDonald's BIG MAC trademark

It was crunch time for the long-standing burger related trademark dispute between McDonald's and Supermac's on 5 June 2024, with the European General Court (EGC) partially revoking McDonald's BIG MAC trademark (the EUTM) in the EU, as the fast-food giant failed to prove genuine use of the EUTM in respect of various goods and services.  The long-standing beef between the parties and the EGC's decision is summarised below:

2015: Irish fast food restaurant chain, Supermac's applied to register "SUPERMAC'S" as an EU trademark. McDonald's objected on the grounds that it would likely be confused with its EUTM.

2017: Supermac's applied to revoke the EUTM for non-use in classes 29 and 30 (meat and poultry products, sandwiches etc), as well as class 42 (services associated with operating restaurants etc) (together, the Classes).

2019: the Cancellation Division of the EUIPO found that McDonald's had failed to provide sufficient evidence to demonstrate genuine use of the EUTM in the Classes (our previous article on this decision can be found here). McDonald's appealed this to the EUIPO's Board of Appeal.

2022: after submitting further evidence to prove its use of the EUTM in Germany, France and the UK, McDonald's EUTM was reaffirmed for use across the Classes (although cancellation was upheld for certain goods and services for example, vegetables, eggs, cheese and milk etc under class 29). Supermac's appealed this decision to the EGC.

2024: the EGC revoked McDonald's EUTM such that it is limited to meat products and meat sandwiches, and no longer includes poultry products and chicken sandwiches in classes 29 and 30, or services associated with operating restaurants in class 42. The EGC was underwhelmed by the evidence submitted by McDonald's to support its registration for "chicken sandwiches" under classes 29 and 30, as it was limited to screenshots from 2015 and 2016 in the French market only and did not include sufficient sales related data. It also failed to submit any evidence to connect the EUTM and services rendered or associated with operating restaurants in class 42.

The decision is a landmark one for owners of outwardly well-known EU trademarks as it confirms that evidence is vital when it comes to demonstrating actual and sufficient use of trademarks – simply owning recognisable trademarks isn't enough.

Top tips: ASA's new rules on alcohol alternatives 

Following a six-month grace period to allow advertisers to make the necessary changes, the ASA's new rules on the promotion of alcohol alternative products (i.e, products with an ABV of 0.5% or less) - introduced in response to the rapid expansion of the NoLo alcohol industry in recent years - are now in force.

For a summary of the key changes, we refer you to Issue 59 of RPC Bites here. We've set out below our top tips for brands to stay on the right side of the new rules:

• Use your well-established brand name to promote alcohol alternatives wisely. It must be clear that you're promoting an alcohol alternative otherwise you will be required to comply with the more stringent rules on advertising alcohol drinks – keep the alcohol alternative's ABV front and centre and avoid depicting alcoholic drinks in any way.
  
  
• Be careful of inadvertently creating ads that appeal to under 18s. Although we're dealing with alcohol alternatives, the ASA is clear that the target audience must be adults – ads should not be targeted towards / appeal to under 18s or feature individuals that look under 25.
  
  
• Practically speaking, it's worth revisiting live ad campaigns to ensure they comply with the new rules.
  
  
• Finally, carefully consider the ASA's guidance on the new rules (here) – this is really the key to understanding how to interpret and navigate the new rules.

Keep the top tips above in mind as the ASA's eyes will no doubt be peeled for examples of good and bad practice with a view to potentially publishing reports analysing industry performance and compliance. 

Is your loaf freshly baked?

The Real Bread Campaign (RBC), an alliance for better food and farming which seeks to make bread better has issued a complaint to Trading Standards in relation to "freshly baked" claims on the packaging of bread products and ads in major UK supermarkets, Sainsbury's, Tesco, Morrisons, Lidl and Aldi.

The complaint centres around the alleged misleading nature of the "freshly baked" claims as the supermarket loaves are often not baked on site and delivered into store before being re-baked from chilled / frozen.

A spokesperson for Sainsbury's commented, "more of our stores now bake pre-prepared dough in store, as it allows us to offer customers the best quality in store bakery products at great value." Similarly, a Tesco spokesperson said, "we work closely with our bakery suppliers who prepare dough for us that trained colleagues bake every day in store."

The complaint will rest upon whether Trading Standards considers that the claims are likely to mislead consumers – food information cannot be misleading under the Food Information to Consumers Regulation. This analysis will seemingly boil down to the interpretation of "freshly baked" i.e., a loaf prepared and baked in store from start to finish, a loaf prepared elsewhere but finished with the final bake in store, or indeed somewhere else on the bread baking spectrum.

Campari falls short in Trademark opposition against microbrewer

Campari Group, the Italian beverage giant and owner of the Aperol, Courvoisier and Skyy Vodka brands (amongst others) has recently lost its opposition to North Pennines based microbrewery, Dark Sky Brewery's application to trade mark a logo incorporating its name, 'Dark Sky Brewery' (the Proposed Trademark). 

In June 2022, Dark Sky Brewery applied to register the Proposed Trademark in classes 16, 21, 32 and 35 for various goods and services relating to beer. Campari opposed the application in October 2022 on the grounds that the Proposed Trademark was too similar to its Skyy Vodka, which was also sold under the beer, wine and spirits category and would therefore allegedly cause confusion to consumers as to whether they are buying a Skyy or Dark Sky Brewery product.

The UK IPO came down in Dark Sky Brewery's favour ruling that there was a low degree of similarity between the parties' products and there was no likelihood of direct confusion. In reaching its conclusion it noted that the only overlap between the products was that that they were both alcoholic beverages, but even so, they would be perceived as relating to entirely different subcategories of alcoholic beverages. Further, the IPO did not consider the word sky to be "so strikingly distinctive that the average consumer would expect only one undertaking to be using it".

The case is a stark example of a classic David vs Goliath trademark dispute, demonstrating the risk for larger brand owners in pursuing the Davids of the trade mark world – if the grounds for opposition are not properly thought out, David may well fight back and win!   

2 years in the making: FSA progresses CBD novel food applications 

A good news story for Pureis and Cannaray as they become the first brands to have their novel food applications for ingestible CBD products progressed to the risk management stage by the Food Standards Agency (FSA). The FSA concluded that the products are "safe when consumed in line with our consumer advice, at up to 10mg of CBD per day."

The FSA's long-awaited decision has been described as a milestone for the CBD industry, with its novel food application process for brands seeking approval for their CBD food products to be sold in the UK having commenced back in 2021. Then, in 2022, the FSA released a list of thousands of CBD food products which had made credible novel food authorisation applications, meaning they were allowed to remain on the market for the time being, but no new products could be brought to market.

Over two years later, Pureis and Cannaray's products are the first to pass the risk assessment stage. The risk management phase will see other key considerations being assessed including the labelling of the products. How long this phase will take and whether the two products will ultimately receive full authorisation remains to be seen. Nonetheless, the FSA's decision has been reassuring to customers, suppliers and investors as the novel foods wheel seems to be finally spinning.

Tesco – your new one stop shop?

Tesco has just launched its online marketplace, to allow its customers to shop for third party products alongside their Tesco groceries. Customers can browse through thousands of third party products, from homeware to toys, and proceed to purchase the products on Tesco's online marketplace, with orders being fulfilled by the third party supplier.

The move into the one stop shop space appears to have been driven by consumer demand and enhancing the consumer experience. Tesco Marketplace director, Peter Filcek said, "we’re constantly looking at ways to improve the shopping experience for our customers, and our new marketplace offers them the same great quality and value they have come to expect from Tesco across an even bigger range of products, from our specially-selected partners." The idea seemingly stemmed from customer searches on Tesco's website for products that the grocer didn't offer – Tesco wanted to plug this gap to meet consumer demand.

All of the brands featured on Tesco's marketplace have been subject to prior vetting and will be monitored to track key performance indicators such as delivery times, returns and customer reviews. The reason for this? Tesco wants to maintain the line between scale, quality and trust to ensure its marketplace delivers exactly what its customers are looking for. The move by Tesco is an example of a wider trend in retail, with retailers seeking novel ideas to elevate the consumer experience.