The use of "not..." in conjunction with product names has become a contentious issue in law, particularly concerning terms that are legally protected or where certain criteria need to be met in order to use the description.
For example, Willicroft, an innovative vegan cheese company, previously employed the "This is not Cheese" branding as a distinctive marketing approach. The term "Not Cheese" was used to underline the products' dairy-free nature and avoid direct comparisons with traditional dairy cheeses, which are subject to stringent regulations as mentioned above.
In light of these regulatory challenges and the potential for misleading implications, Willicroft has since moved away from the "Not Cheese" nomenclature. This shift reflects a broader trend in the industry towards clearer, more compliant labeling practices.
Other examples have recently arisen within the food and drink sector. In the EU Tofutown case, it was determined that designations such as 'milk', 'cheese', and 'butter' are reserved for animal products only, and plant-based alternatives cannot use these protected names.
A similar challenge has arisen in the United States. Fireball Cinnamon mini bottles are the subject of a lawsuit alleging misleading marketing as the bottles do not contain whiskey, despite what the name suggests.
In this article we will explore how the use of "not..." in product names can be viewed as a strategy to evade these regulatory restrictions and the potential legal implications of this approach.
RECENT CASE LAW AND EU LEGISLATION ON THE SUBJECT OF PROTECTED PRODUCTS AND NAMES
EU case C-783/19
The owner of a few tapas bars in Spain used the name "CHAMPANILLO" (Spanish for "little champagne") to identify and market his venues. His advertising featured an image of two clinking champagne glasses filled with a sparkling drink.
This case concerns the interpretation of Article 103(2)(b) of Regulation No. 1308/2013, which deals with the protection of designations of origin and geographical indications for agricultural products. The EU Court of Justice was requested to clarify the scope of protection and stated in this context several general assumptions about it:
- In premise 37, the Advocate General emphasises that Article 103(2)(b) protects against any "misuse, imitation, or suggestion," even when the contested term is not identical to the protected designation but merely evokes an association with it in the consumer's mind. This means that protection applies not only to exact copies of designations but also to cases where a product indirectly references a protected designation, potentially misleading consumers. This interpretation has a broad scope, as it protects against any form of marketing that could create a false association with a protected designation, highlighting the importance of shielding consumers from misleading information and maintaining the integrity of designations of origin and geographical indications.
- The Court also ruled that the key factor for evocation is whether the disputed sign directly brings the name of the protected product to mind for the consumer. The link must be sufficiently clear and direct between the term used to designate the disputed product and the protected product.
EU Directive 2005/29 ("Unfair Commercial Practices Directive")
Under Article 6 of the Directive, it may also be inferred that a marketing practice that uses phrases such as "not..."(cheese, milk, champagne etc.) is considered misleading if it can deceive the average consumer. According to the directive, a commercial practice is deemed misleading if it contains information that could mislead an average consumer, even if the information is factually correct. The use of "not..." statements can create confusion or imply a false impression about a product's characteristics, benefits, or other essential elements. Therefore, marketing must be clear and precise, avoiding ambiguous statements that could mislead consumers and affect their purchasing decisions.
ALWAYS USE CAUTION IF YOU PLAN TO USE A "NOT..."
In conclusion, the use of "not..." in product labeling and advertising, particularly in relation to protected designations, poses legal challenges.
As seen in some of the cases, regulators are attentive to marketing strategies that attempt to circumvent legal restrictions by using indirect or ambiguous language. The EU's stance, particularly through the ruling in case C-783/19 and the interpretation of the Unfair Commercial Practices Directive emphasises the importance of protecting consumers from misleading information.
Even when phrases like "not..." are factually correct, they can still evoke associations with protected terms, leading to consumer confusion and potential legal violations.
There is also a significant risk associated with using "not..." as a means to navigate regulatory boundaries. While it might seem like a clever marketing tactic, it ultimately undermines the principles of fair communication and consumer protection.
If we return to Willicroft, their shift away from the "This is not Cheese" branding could reflect a growing awareness in the industry of the need for clearer and more compliant labeling practices. Companies must prioritise transparency and accuracy in their marketing to avoid the pitfalls of misleading consumers and the legal repercussions that can follow.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.