JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
29 November 2023 (*)
(EU trade mark – Application for the EU word mark MYBACON – Absolute ground for refusal – Mark of such a nature as to deceive the public – Article 7(1)(g) of Regulation (EU) 2017/1001)
In Case T‑107/23,
Myforest Foods Co., established in Green Island, New York (United States), represented by P. Martini-Berthon, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,
defendant,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, G. De Baere (Rapporteur) and S. Kingston, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Myforest Foods Co., seeks annulment of the Decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 December 2022 (Case R 1201/2022-5; ‘the contested decision’).
Background to the dispute
2 On 1 September 2021, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign MYBACON.
3 The goods for which registration was sought fall within Class 29 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Fungi-based meat substitutes; meat substitutes; prepared meals consisting primarily of meat substitutes including fungi-based meat substitutes’.
4 By decision of 10 May 2022, the examiner rejected the application for registration of that mark in respect of all the goods referred to in paragraph 3 above, on the basis of Article 7(1)(g) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), read in conjunction with Article 7(2) of that regulation.
5 On 6 July 2022, the applicant filed with EUIPO a notice of appeal against the examiner’s decision.
6 By the contested decision, the Board of Appeal dismissed the appeal. It concluded that the mark applied for was liable to deceive the relevant public as to the nature of the goods in question and that it fell within the absolute ground for refusal set out in Article 7(1)(g) of Regulation 2017/1001.
Forms of order sought
7 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
8 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs if an oral hearing is convened.
Law
9 In support of its action, the applicant relies on three pleas in law, alleging (i) infringement of Article 7(1)(g) of Regulation 2017/1001, (ii) infringement of Article 94(1) of that regulation and (iii) infringement of Article 95(1) of that regulation.
The second plea, alleging infringement of Article 94(1) of Regulation 2017/1001
10 The applicant submits that the Board of Appeal infringed its obligation to state reasons laid down in Article 94(1) of Regulation 2017/1001.
11 Under the first sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. That obligation has the same scope as that which derives from the second paragraph of Article 296 TFEU, which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question, without it being necessary for that reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets those requirements must, nonetheless, be assessed with regard, not only to its wording, but also to its context and to all the legal rules governing the matter in question (see judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 65 and the case-law cited).
12 First, the applicant submits that the Board of Appeal failed to take into account evidence which it had adduced, namely a press article mentioning the European Parliament’s rejection, in October 2020, in the context of the reform of the common agricultural policy, of an amendment which would have restricted the use of the terms ‘burger’, ‘steak’, ‘escalope’, ‘hamburger’ or ‘sausage’ exclusively to meat-based products.
13 In that regard, in the contested decision, the Board of Appeal found that the EU labelling rules referred to by the applicant were irrelevant. It noted that those rules merely enabled citizens to obtain comprehensive information on the content and composition of food products and helped consumers to make an informed choice when purchasing foodstuffs. It added that it was also clear from the case-law that offering consumers the opportunity to check the label of a product did not preclude the mark referring to those goods from being misleading nor the possibility that a consumer might simply rely on the sign MYBACON when making a hurried purchase.
14 It follows that the Board of Appeal gave sufficient reasons why it found, implicitly but necessarily, that that evidence was not relevant and ought not to be taken into account.
15 Second, the applicant submits that the Board of Appeal did not clearly define the relevant public and did not assess the market reality or consumer habits and perceptions in the segment of the goods in question.
16 On the one hand, it is apparent from the contested decision that the Board of Appeal took into account the average consumer of foodstuffs and assessed whether there was a risk that the English-speaking general public, with an average level of attention with regard to food products, would be deceived.
17 On the other hand, the Board of Appeal stated that while some consumers were looking for plant-based meat substitutes, other consumers, in particular those who followed a paleo diet, bought bacon from pig meat for its high protein and high saturated fat content and its low carbohydrate content. It took the view that consumers making a hurried purchase who saw the mark MYBACON, without any further clarifying indication, could conceivably be deceived and would buy the goods in question instead of bacon made from pork. It also stated that vegetarian and vegan foodstuffs as well as non-vegan and non-vegetarian foodstuffs were found near one another in supermarkets and were packaged in a similar manner. It stated that most supermarket purchasing was habitual and that consumers placed little cognitive effort in the purchase of many everyday products.
18 It follows that the Board of Appeal clearly defined the relevant public and took account of its consumption habits, its perception and the presentation of the goods on the market.
19 Third, the applicant submits that the Board of Appeal provided no plausible explanation for the existence of a sufficiently serious risk that the consumer would be deceived when purchasing the goods in question.
20 For the purpose of applying Article 7(1)(g) of Regulation 2017/1001, the Board of Appeal should have ascertained whether, on the date of the application for registration of the mark, there was any inconsistency between the information which the contested mark conveyed and the characteristics of the goods designated in that application (see judgment of 29 June 2022, Hijos de Moisés Rodríguez González v EUIPO – Ireland and Ornua (La Irlandesa 1943), T‑306/20, EU:T:2022:404, paragraph 71 and the case-law cited).
21 In the contested decision, the Board of Appeal noted that the mark applied for was a word mark combining the basic English words ‘my’ and ‘bacon’ without a space and that there was no perceptible difference between that mark and the sum of those two components. It took the view that the combination ‘mybacon’ could, in all reasonableness, be understood as meaning ‘bacon’ in the sense of ‘meat from the back and sides of a pig, dried, salted and usually smoked’, which was especially elaborated bearing in mind the consumer’s needs.
22 The Board of Appeal found that there was a serious risk that at least a significant part of the English-speaking general public, displaying at most an average degree of attentiveness in relation to foodstuffs, when confronted with the sign ‘MYBACON’ for ‘fungi-based meat substitutes; meat substitutes; prepared meals consisting primarily of meat substitutes including fungi-based meat substitutes’, would be deceived and would purchase those products, thinking that they were purchasing foodstuffs which are or contain meat from the back and sides of a pig, dried, salted, and usually smoked, when that was not the case. It concluded that the sign applied for was therefore liable to deceive the public as to the nature of the foodstuffs in question.
23 It follows that the Board of Appeal clearly explained that the sign applied for conveyed a clear message designating a characteristic of the goods, namely that they consisted of pork meat, and that the relevant public would be led to believe that that was a characteristic of the goods in question even though it was not in fact a characteristic of those products. The Board of Appeal accordingly gave sufficient reasons for its finding that there was a sufficiently serious risk that the relevant public would be deceived as to the nature of the goods in question when purchasing them.
24 Consequently, the second plea must be rejected as being unfounded.
The first plea, alleging infringement of Article 7(1)(g) of Regulation 2017/1001
25 The applicant submits, in essence, that the Board of Appeal erred in finding that the sign applied for was liable to deceive the public as to the nature of the foodstuffs in question.
26 Under Article 7(1)(g) of Regulation 2017/1001, registration is to be refused for trade marks which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service.
27 It is settled case-law that the circumstances for refusal of registration referred to in Article 7(1)(g) of Regulation 2017/1001 presuppose the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived (see judgments of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 54 and the case-law cited, and of 29 June 2022, La Irlandesa 1943, T‑306/20, EU:T:2022:404, paragraph 55 and the case-law cited).
28 It must be borne in mind, in that respect, that the essential function of a trade mark is to guarantee the identity of the origin of the marked goods or services to the consumer or end user by enabling him or her, without any possibility of confusion, to distinguish those goods or services from others which have another origin. For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish and maintain, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality. A trade mark no longer fulfils that role of acting as a guarantee if the information that it contains deceives the public (see judgment of 13 May 2020, SolNova v EUIPO – Canina Pharma (BIO-INSECT Shocker), T‑86/19, EU:T:2020:199, paragraph 72 and the case-law cited).
29 The assessment of the ground set out in Article 7(1)(g) of Regulation 2017/1001 cannot extend to anything other than the goods or services in question on the one hand and the perception of the mark by the relevant public on the other (see judgment of 29 June 2022, La Irlandesa 1943, T‑306/20, EU:T:2022:404, paragraph 56 and the case-law cited).
30 In addition, Article 7(1)(g) of Regulation 2017/1001 implies a sufficiently specific designation of potential characteristics of the goods and services covered by the trade mark. Only where the targeted consumer is led to believe that the goods and services possess certain characteristics which they do not in fact possess will he or she be deceived by the trade mark (see judgment of 29 June 2022, La Irlandesa 1943, T‑306/20, EU:T:2022:404, paragraph 57 and the case-law cited).
31 By its first complaint, the applicant argues that the Board of Appeal incorrectly defined the relevant public. According to the applicant, the relevant public is specifically made up of consumers of the goods referred to by the mark applied for, namely consumers of ‘fungi-based meat substitutes; meat substitutes; prepared meals composed mainly of meat substitutes including fungi-based meat substitutes’.
32 The applicant submits that those consumers display a certain level of attention in so far as they are particularly interested in the composition of the goods in question. It also disputes that consumers of the goods in question make their purchases in haste, in so far as they display a certain level of attention involving reading the labels showing the composition of those products.
33 In accordance with settled case-law, the goods designated by the mark applied for, in Class 29, are food products for everyday consumption by consumers as a whole. Consequently, the relevant public is deemed to be the average consumer who is reasonably well informed and reasonably observant and circumspect. In addition, pursuant to Article 7(2) of Regulation 2017/1001, the section of the public by reference to whom the absolute ground for refusal must be assessed is the English-speaking public since the word sign in question is composed of elements of the English language (see, to that effect, judgments of 15 October 2003, Nordmilch v OHIM (OLDENBURGER), T‑295/01, EU:T:2003:267, paragraph 35 and the case-law cited, and of 30 June 2004, Norma Lebensmittelfilialbetrieb v OHIM (Mehr für Ihr Geld), T‑281/02, EU:T:2004:198, paragraph 27 and the case-law cited).
34 First, as regards the definition of the relevant public, the applicant cannot maintain that it is limited solely to consumers of the goods specifically designated by the mark applied for.
35 The goods in question are food products for everyday consumption by consumers as a whole. Accordingly, the relevant public consists of both actual and potential consumers, that is to say, consumers who are currently buying the goods in question or who are likely to do so in the future.
36 It should be noted that the goods in question are intended for general consumption and not only for vegetarians or vegans, since anyone is likely at some time or another to acquire such goods either regularly or occasionally (see, to that effect, judgment of 11 May 2005, Naipes Heraclio Fournier v OHIM – France Cartes (Sword in a pack of cards, knight of clubs and king of swords), T‑160/02 to T‑162/02, EU:T:2005:167, paragraph 45).
37 Consequently, the Board of Appeal was correct in finding that the relevant public consisted of the English-speaking general public.
38 Second, it must be observed that the applicant’s argument that, since consumers of the goods specifically covered by the mark applied for are particularly interested in the composition of the goods in question, they display a certain level of attention and do not purchase in haste, is based on the incorrect definition of the relevant public referred to in paragraph 34 above.
39 In any event, registration was sought for food products in Class 29, which are everyday consumer products which the customer normally purchases quickly and without paying great attention to them (see, to that effect, judgments of 17 December 2010, Chocoladefabriken Lindt, Sprüngli v OHIM (Shape of a chocolate rabbit), T‑395/08, not published, EU:T:2010:550, paragraph 20, and of 29 January 2019, The GB Foods v EUIPO – Yatecomeré (YATEKOMO), T‑336/17, not published, EU:T:2019:36, paragraph 45 and the case-law cited). They are inexpensive goods, generally sold in supermarkets and the purchase of which is not preceded by a long period of reflection (see, to that effect, judgment of 10 May 2016, August Storck v EUIPO (Representation of white and blue square-shaped packaging), T‑806/14, not published, EU:T:2016:284, paragraph 38 and the case-law cited).
40 Therefore, the Board of Appeal was correct in finding, first, that the relevant public displayed at most an average degree of attention and, second, that consumers of the goods in question purchased them in haste, usually in supermarkets, and placed little cognitive effort into their purchase.
41 Furthermore, the applicant’s argument that consumers of the goods in question pay particular attention to the composition of the goods implies that the misleading nature of the mark would be detected by the consumer only at the time of reading the label listing the ingredients of those goods. However, consumers may be led to purchase the products in haste, without taking the time to analyse the text on the packaging.
42 Moreover, it is apparent from the case-law that offering consumers the opportunity to check the label to see which ingredients are used in the manufacture of a foodstuff does not in and of itself preclude the mark referring to those goods from being misleading (see, to that effect, judgment of 26 October 2017, Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff), T‑844/16, EU:T:2017:759, paragraph 45 and the case-law cited).
43 Lastly, the applicant cannot maintain that the Board of Appeal erred in finding that the general public would not take into consideration labelling regarding details of the composition of the goods, which is mandatory under Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).
44 That regulation lays down the requirements relating to the provision of information on foodstuffs to the consumer and, in particular, as regards labelling, but does not allow conclusions to be drawn as to the level of attention displayed by consumers when purchasing those goods within the meaning of trade mark law. The fact that EU legislation provides for mandatory information to be affixed to foodstuffs in no way presumes that the consumer concerned will pay attention to that information (order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND), T‑616/19, not published, EU:T:2020:334, paragraph 34).
45 Consequently, the first complaint must be rejected.
46 By its second complaint, the applicant submits that, in order to state the reasons for the contested decision, the Board of Appeal ought to have established, first, the market reality and the habits and perceptions of consumers of the goods in question with factual evidence and, second, the existence of a clear expectation which is contradictory to the nature of those goods.
47 First, it should be noted that the applicant’s argument is based on an incorrect definition of the relevant public, as stated in paragraphs 34 to 37 above, which does not include the whole of the general public, but is limited solely to consumers of the goods in question.
48 Second, by the present complaint, the applicant merely submits that the statement of reasons of the contested decision is inadequate. That complaint has already been rejected in paragraphs 17, 18 and 21 to 23 above.
49 Consequently, the second complaint must be rejected.
50 By its third complaint, the applicant relies on a reversal of the burden of proof regarding the widespread use of the word ‘bacon’. The applicant’s view is that the Board of Appeal erred in holding that the evidence submitted by the applicant did not make it possible to establish that the word ‘bacon’ had become a generic term designating both traditional pork meat bacon and bacon from other meat of animal origin or from vegetarian or vegan sources. According to the applicant, the Board of Appeal failed to establish, on the basis of its own evidence, that the word ‘bacon’ had not become a generic term.
51 In the contested decision, the Board of Appeal noted that, according to the Collins English dictionary, the word ‘bacon’ meant ‘meat from the back and sides of a pig, dried, salted and usually smoked’ and that that definition matched the traditional understanding of that word.
52 It must be observed that the applicant does not dispute that definition, which is, in addition, confirmed by the dictionary extracts annexed to the application. Accordingly, the applicant adduces an extract from the online Merriam-Webster dictionary which gives, as the first definition of the word ‘bacon’, ‘a side of a pig, cured and smoked’, as well as the Wikipedia encyclopaedia entry relating to ‘bacon’ which states that ‘bacon is a type of salt-cured pork made from various parts, typically the belly or less fatty parts of the back’.
53 By submitting that that term has evolved to designate not only pork meat products but also meat products from other animals or vegetarian or vegan products, the applicant does not call into question the fact that the definition adopted by the Board of Appeal, which appears in dictionaries, constitutes the truest sense of the word ‘bacon’.
54 It is apparent from the case-law that Article 7(1)(g) of Regulation 2017/1001 applies even if a non-deceptive use of the mark at issue is possible (see judgment of 13 May 2020, BIO-INSECT Shocker, T‑86/19, EU:T:2020:199, paragraph 84 and the case-law cited).
55 Accordingly, the fact that the mark applied for might also be perceived in a way that is not misleading is irrelevant (judgment of 27 October 2016, Caffè Nero Group v EUIPO (CAFFÈ NERO), T‑29/16, not published, EU:T:2016:635, paragraph 48).
56 Consequently, the fact that the word ‘bacon’ may have evolved and may be used to refer to bacon from other meat or plant sources is irrelevant since that word continues to refer to pork meat products. Accordingly, the fact that the online Merriam-Webster dictionary and the Wikipedia encyclopaedia, which were adduced by the applicant, contain additional definitions of the word ‘bacon’ indicating that it may refer to meat from other animals which can be prepared in such a way as to resemble pork bacon, for example, ‘turkey bacon’, is irrelevant.
57 In addition, it should be noted that the examples referred to in the application, namely the expressions ‘turkey bacon’ or ‘vegan bacon’, do not establish that the word ‘bacon’ has become a generic term. Those examples show only the use of the word ‘bacon’ with another term specifying the plant or animal source of the product, but do not establish that the word ‘bacon’ alone has lost its original meaning and no longer refers to pork meat products.
58 As regards the evidence adduced by the applicant before the Board of Appeal, that board found that that evidence did not demonstrate that the word ‘bacon’, taken in isolation and without further specification, had become generic for both traditional bacon and bacon from other meat, vegetarian or vegan sources. It also stated that none of the examples provided by the applicant precluded the serious risk that if the average consumer were to see the mark applied for MYBACON on foodstuffs, unlike, for example, ‘Finnebrogue naked without the Oink’ or ‘Quorn PROUDLY MEAT FREE’, he or she would be deceived into purchasing the product thinking that it is ‘meat from the back and sides of a pig, dried, salted, and usually smoked’ which has been especially elaborated bearing in mind his or her needs.
59 Contrary to the applicant’s assertions, that assessment by the Board of Appeal does not constitute a reversal of the burden of proof. It was not for the Board of Appeal to demonstrate, relying on evidence, that the word ‘bacon’ had other meanings which could lead to a non-deceptive perception of the mark. As EUIPO maintains, the Board of Appeal was only required to establish that the sign was deceptive in one of its possible perceptions, for the purposes of applying Article 7(1)(g) of Regulation 2017/1001.
60 In addition, the applicant submits that it had produced before the Board of Appeal evidence intended to establish that consumers were accustomed to using the terms ‘steak haché’ and ‘sausage’, traditionally associated with meat of animal origin, to refer to food produced from vegetarian or vegan sources. It also submits that the Parliament’s rejection, in October 2020, of an amendment which restricted the use of the terms ‘burger’, ‘steak’, ‘escalope’, ‘hamburger’ or ‘sausage’ exclusively to meat-based products constitutes evidence that the use of the sign MYBACON for fungi-based meat substitutes is not misleading.
61 First, it must be held that that evidence is not relevant, since it does not refer to the word ‘bacon’.
62 Second, the debates in the Parliament, in the context of the common agricultural policy, relating to the provision of food information to consumers and, in particular, the use of certain terms, do not relate to the EU system for the protection of trade marks. Moreover, the Parliament’s rejection of an amendment intended to restrict the use of certain terms to meat products cannot be interpreted as implying a contrario that their use for other goods would not be liable to deceive consumers. Therefore Parliament’s rejection of that amendment cannot lead to an inference being drawn regarding the possibility that the consumer is deceived or of a risk that the consumer is deceived, as referred to in Article 7(1)(g) of Regulation 2017/1001.
63 Consequently, the third complaint must be rejected.
64 By its fourth complaint, the applicant submits that the Board of Appeal erred in finding that the fact that the word ‘my’ would be understood as a possessive pronoun did not alter the deceptive nature of the word ‘bacon’. In that regard, it lists examples of EU trade marks or international registrations with effect in the European Union, covering meat substitutes, in particular of plant origin, including an initial word which does not refer to plant ingredients, followed by a second word traditionally associated with meat of animal origin, such as NEAT BURGER, IMPOSSIBLE MEAT, THE BEYOND BURGER, FLEXI BURGER, MIRACLE MEAT and FUTURE BURGER. The Board of Appeal adduced no evidence to support its conclusion that the word ‘my’ was not sufficient to alter the deceptive nature of the sign applied for, whereas it considered that words such as ‘neat’, ‘flexi’, ‘impossible’, ‘miracle’ and ‘future’ were sufficient.
65 In addition, the applicant submits that the Board of Appeal could not simply state that the word ‘my’ is not a generally acknowledged abbreviation of the word ‘mycelium’ in order to conclude that the addition of that word did not alter the deceptive nature of the sign MYBACON. The word ‘my’ refers to mycelium and ‘myco’, a prefix meaning ‘fungi’. It adds that the word ‘my’ also connotes the English first person possessive pronoun which, when combined with the word ‘bacon’, connotes a particular kind of bacon specifically developed or selected for ‘me’ and ‘my’ particular dietary requirements.
66 The applicant maintains that the Board of Appeal’s reasoning is incorrect in so far as it is based on the perception of ‘average consumers of foodstuffs’ whereas the relevant public is composed of consumers of the goods in question who have a certain level of attention and knowledge of the market. Since those consumers are familiar with vegan meat products and mycelium, they would perceive the mark applied for as meaning ‘mycelium bacon’ and, on reading the label of the goods, would understand that the word ‘my’ is a reference to the applicant’s company name and that, therefore, the goods concerned do not contain meat.
67 In the contested decision, the Board of Appeal found that many average consumers of foodstuffs would not know mycelium, which is a meat substitute which uses fungal growths to produce a meat-like substance. In addition, it stated that the word ‘my’ was not a generally acknowledged abbreviation for ‘mycelium’ and that it was therefore very unlikely that the average consumer of foodstuffs would understand the mark applied for as meaning ‘mycelium bacon’, namely bacon made from mycelium.
68 The Board of Appeal took the view that the most obvious connection which the consumer would make from the ‘my’ part of the sign applied for would very probably be the connection to the English first person possessive pronoun. According to the Board of Appeal, the addition of the word ‘my’ to the word ‘bacon’ would therefore merely serve to personalise the applicant’s product offer and only indicate that that offer was elaborated with the consumer’s needs in mind. It found that the ‘my’ part of the sign applied for was merely a laudatory addition which could not alter the deceptive nature of the word ‘bacon’ as such for the goods in question.
69 In that regard, first, it is apparent from the analysis of the first complaint above that the applicant’s argument that the Board of Appeal relied on an incorrect definition of the relevant public must be rejected.
70 Second, it is sufficient to note that the applicant does not dispute that the word ‘my’ may be understood as being the English first person possessive pronoun and that the sign applied for may be understood by the relevant public as meaning ‘bacon specifically developed for me or my dietary requirements’.
71 Consequently, in the light of the case-law cited in paragraphs 54 and 55 above, the fact that the word ‘my’ could also be perceived by some consumers as a reference to the applicant’s mycelium or its company name is ineffective. The fact that some consumers will understand the sign applied for as meaning ‘meat from the back and sides of a pig, dried, salted and usually smoked, developed for my requirements’ is sufficient for a finding that the sign is deceptive as referred to in Article 7(1)(g) of Regulation 2017/1001.
72 Third, as regards the other EU trade marks registered or the international registrations with effect in the European Union cited by the applicant, the Board of Appeal found that the vast majority of them could not be regarded as deceptive. It noted that many marks contained the word ‘beyond’, such as the international registration BEYOND BACON, which suggested that the meat substitutes covered by those marks were better than ‘bacon’ and were therefore not ‘bacon’. It stated that many other registrations, including IMPOSSIBLE MEAT and MIRACLE MEAT, or the mark FUTURE BURGER, included another word which rendered the whole not deceptive.
73 It is sufficient to observe that the examples cited by the applicant concern signs containing an additional word the meaning of which indicates that the goods covered are not ‘meat’ or ‘burger[s]’, but different goods. That is not the case for the word ‘my’ when placed next to the word ‘bacon’, since the expression ‘my bacon’ can be understood by consumers who wish to buy pork meat as indicating that it is a product made specifically for them. The Board of Appeal was therefore correct in finding that the addition of the word ‘my’ could not alter the deceptive nature of the word ‘bacon’.
74 Accordingly, the examples cited by the applicant are not comparable with the sign applied for and the fact that they may have been found not to be deceptive is not relevant to the assessment of the deceptive nature of the sign MYBACON.
75 Consequently, the fourth ground of complaint must be rejected.
76 By its fifth complaint, the applicant submits that the Board of Appeal did not establish, on its own evidence, that there was a sufficiently serious risk that the consumer would be deceived when purchasing the goods in question, in that the consumer would think that he or she was buying foodstuffs containing pork meat. The Board of Appeal relied solely on the evidence adduced by the applicant in finding that it did not preclude there being a serious risk of deception. The burden of proof lies with EUIPO and the extract from the Collins dictionary cited by the Board of Appeal is not sufficient to establish the existence of a sufficiently serious risk of deception.
77 In that regard, it must be recalled that, in the contested decision, in the light of the traditional definition of the word ‘bacon’ in the dictionary, the Board of Appeal found that there was a real risk that the relevant public would purchase the goods covered by the mark applied for, thinking that they were pork meat products, whereas, having regard to the description of the goods in question, they did not contain pork. Thus, in accordance with the case-law cited in paragraph 20 above, the Board of Appeal established that there was a contradiction between one of the possible meanings of the sign MYBACON and the nature of the goods referred to in the application for registration.
78 The applicant cannot maintain that that assessment by the Board of Appeal was insufficient for a finding to be made that there was a risk of deception as referred to in Article 7(1)(g) of Regulation 2017/1001.
79 The fact that the Board of Appeal observed that the examples provided by the applicant did not preclude the existence of that risk cannot constitute a reversal of the burden of proof. The Board of Appeal merely found that the applicant’s arguments did not call its assessment into question.
80 Consequently, the fifth complaint must be rejected.
81 It follows from all of the foregoing that the first plea must be dismissed as being unfounded.
The third plea, alleging infringement of Article 95(1) of Regulation 2017/1001
82 The applicant submits that the Board of Appeal did not demonstrate that there was a real or sufficiently serious risk that the consumer would be deceived when purchasing the goods in question. The Board of Appeal relied solely on the evidence submitted by the applicant, with the exception of a dictionary extract, in order to reject the application for registration. It reversed the burden of proof by finding that ‘none of the examples provided by the applicant preclude[d] the serious risk’ that, if the average consumer saw the mark applied for on foodstuffs, he or she would be deceived, thinking that it was pork meat.
83 It is sufficient to state that, by its third plea, the applicant is raising the same arguments which have already been rejected in the context of the analysis of the fifth complaint of the first plea.
84 Consequently, the third plea must be rejected as being unfounded and, therefore, the action must be dismissed in its entirety.
Costs
85 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
86 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event of a hearing being convened. Since no hearing was convened, each party must bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 29 November 2023.
V. Di Bucci | | S. Papasavvas |