The Hague Court of Appeal ruled on April 12, 2022 that INCREDIBLE BURGER infringes the EU word mark IMPOSSIBLE BURGER.
IF is an American company founded in 2011 that manufactures plant-based substitutes for animal products. It has been marketing a vegetarian burger under the (trademark) name IMPOSSIBLE BURGER in the United States since 2016. In Europe, the IMPOSSIBLE BURGER is not on the market. IF is the holder of the European Union word mark IMPOSSIBLE BURGER, applied for on October 15, 2018 and registered on February 28, 2019. Nestlé sells its meat substitutes in part of Europe under the brand name GARDEN GOURMET. At the end of 2018, Nestlé announced that it would introduce a meat-like plant-based burger on the market under the name INCREDIBLE BURGER within the Garden Gourmet range.
IF disagreed and sought to prohibit Nestlé et al. from infringing IF’s trademark rights, in particular by prohibiting the use of the sign INCREDIBLE BURGER as a trademark on or for food products, on pain of a penalty payment.
The Court of Appeal agrees with IF and confirms the position of the District Court. Nestlé’s use of INCREDIBLE BURGER is not in accordance with honest practices in industry and commerce as referred to in the Trademark Act. INCREDIBLE BURGER infringes IMPOSSIBLE BURGER: strong visual and aural similarity between the two marks, but no conceptual similarity. The products are identical and likelihood of confusion is plausible. The injunction against Nestlé is granted.
