Cancellation IMPOSSIBLE BURGER brand impossible task

There is a rule in trademark law that descriptive indications may not be monopolized as trademarks. These designations must be kept free for everyone. For example, the word "Apple" cannot be a trademark for apples. Nor can Apple sue supermarkets and greengrocers for their use of the descriptive designation apple.

A dispute is ongoing between Impossible Food and Nestlé over the vegetarian hamburgers of both companies. In an earlier decision of the District Court of The Hague, it was ruled that the name INCREDIBLE BURGER was used by Nestlé as a trademark and not as a descriptive indication. The reason was that the name said nothing about the product composition. Nestlé has now also lost out to Impossible Foods at the European Union Intellectual Property Office (the "EUIPO"). In these proceedings Nestlé claims that Impossible Foods' trademark IMPOSSIBLE BURGER is a descriptive indication and therefore not valid.

Nestlé argued that the IMPOSSIBLE BURGER trademark is descriptive because it describes a characteristic of the product, namely that it is a burger that cannot possibly exist. The mark is also said to have a promotional meaning: the public could interpret it as meaning that it is impossible to make a vegetarian burger that tastes like a real burger. The EUIPO disagrees with Nestlé. According to the EUIPO, no specific characteristics of the vegetarian burger of Impossible Foods are described. Also, no specific quality or superior quality is described, in contrast: normally "impossible" has a negative connotation. This ensures that consumers are surprised by this word combination. EUIPO believes that Nestlé's interpretation of the brand requires too many thought steps and the consumer of the vegetarian burger would not make these thought steps. Therefore, Impossible Foods' trademark will not be cancelled.

Whether this case will have a tail end is uncertain. Nestlé renamed its Incredible Burger the Sensational Burger after the ruling of the District Court of The Hague and it is possible that this will be the end of it. Time will tell.

Mathijs Peijnenburg