An impossibly incredible burger

There is a rule in trademark law that descriptive indications may not be monopolised as trademarks. These indications must remain free for everyone to use. For example, the word "Apple" cannot be a trademark for apples. Apple cannot summon supermarkets and greengrocers not to use the descriptive indication apple.

A dispute arose between Impossible Foods and Nestlé regarding Nestlé’s INCREDIBLE BURGER. By using that name, Nestlé would infringe Impossible Foods' IMPOSSIBLE BURGER trademark.

Nestlé believes that the name INCREDIBLE BURGER is purely descriptive: the public would perceive the name as "a commendation to a burger of incredible, extraordinary quality". The court does not agree: the name says nothing about the composition of the product. Moreover, Nestlé also offers burgers that do tell something about the composition, such as the lentil burger, cheeseburger and jalapeño burger. Hence, the court rules that INCREDIBLE BURGER is used as a trademark. A strict interpretation - there are certainly arguments against this reasoning. Nestlé will most likely not leave it at that.

The moral of the story: a trademark is often recognisable as such. Often, use is made of clearly distinguishing indications such as Lay's, Tommy Hilfiger and Microsoft. However, the District Court of The Hague ruled that commendations of a product such as INCREDIBLE BURGER can also be regarded as a trademark and can therefore constitute a trademark infringement. Thus, terms such as 'AMAZING CRISPS', 'STYLISH CLOTHES' and 'UNBELIEVABLE COMPUTER' also fall within trademark law.

Mathijs Peijnenburg