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German veg food maker TofuTown found infringing EU milk designation rule
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Friday, 16 June, 2017, 08 : 00 AM [IST]
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Berlin
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Verband Sozalier Wettberwerb, a German association whose responsibilities include combating unfair competition, alleged that TofuTown, a German company that produces and distributes vegetarian and vegan foods, infringed the European Union (EU) legislation on designations for milk and milk products.
Action was brought against the latter, which promotes and distributes purely plant-based products under the designations Soyatoo Tofu Butter, Plant Cheese, Veggie Cheese, Cream and other similar designations, for a prohibitory injuction before the Landgericht Trier (the trier at a regional court in Germany).
The trier asked the Court of Justice to interpret the legislation, following TofuTown’s claim that its advertising did not infringe the relevant legislation. The company argued that the way in which consumers understood those designations has changed considerably in recent years.
Moreover, it stated that it did not use designations such as butter or cream on their own, but the designations were always used in association with words referring to the plant origin of the products concerned, such as tofu butter or rice spray cream.
In its judgment, the Court observed that, in principle, for the purposes of the marketing and advertising, the relevant legislation reserved the term milk only for milk of animal origin. In addition, except where expressly provided, the legislation reserved designations like cream, chantilly, butter, cheese and yoghurt solely for milk products, that is products derived from milk.
The Court concluded that the designations set out above could not be legally used to designate a purely plant-based product, unless that product was mentioned on the list of exceptions, which was not the case for soya or tofu.
It stated that the addition of descriptive or clarifying additions indicating the plant origin of the product concerned, such as those used by TofuTown, had no influence on that prohibition, adding that that interpretation of the relevant legislation did not conflict with the principle of proportionality or the principle of equal treatment.
As far as the principle of proportionality was concerned, the Court observed, in particular, that the addition of descriptive or explanatory terms could not completely exclude the likelihood of confusion on the part of consumers.
And regarding the principle of equal treatment, it found that TofuTown could not rely on unfair treatment by arguing that the producers of vegetarian or vegan substitutes for meat or fish were not subject to restrictions comparable to those to which producers of vegetarian or vegan substitutes for milk or milk products were subject, as the products in question were dissimilar and, therefore, subject to different rules.
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