The Meatless Monopoly: Plant-Based Companies Using IP Protections to Expand their Brands
After decades of limited options, vegan and vegetarian alternatives to meat have made a huge splash in mainstream restaurants over the last three years. In 2019, Burger King successfully launched its Impossible Whopper, a meat-free alternative to its namesake sandwich.[1] So pleased by the popularity, Burger King expanded its offerings to include Impossible Nuggets—an alternative option for chicken nugget lovers—just last fall.[2] Similarly, in June 2020, Starbucks introduced the plant-based Impossible Breakfast Sandwich to be served alongside its traditional bacon, ham, and turkey sandwich offerings.[3] And the list goes on—Little Caesars,[4], White Castle,[5] Johnny Rocket’s,[6] and Baja Fresh[7] all have plant-based “meat” options on their menus.
While vegan and vegetarian alternatives to meat like tempeh, seitan, and tofu have been around for centuries, the explosion of brands like Impossible Foods and Beyond Meat seem to appeal to vegetarians and carnivores alike. Engineered to taste and look like meat, these options are expanding their market share.[8] According to a 2020 Gallup Poll, approximately 40% of Americans had already tried plant-based meat.[9]
Despite their relative popularity already, these brands are turning to intellectual property protections to further solidify their market-dominating status and expand their offerings.
Impossible Foods
According to a recent IP Watchdog article, since its 2011 founding, California-based Impossible Foods has secured 10 patents to protect its technology with seven applications currently pending.[10] The patents cover methods for flavor and aroma of consumables,[11] methods for purifying protein,[12] ground meat replicas,[13] methods of genetically engineering methylotrophic yeast[14] and more.
The company has also filed trademark applications to cover more than 60 products including its flagship Impossible Meat,[15] Impossible Cheesesteak,[16] and Impossible[17]—a range that will include non-dairy cheese, cream, creamer, yogurt, milk, half-and-half, buttermilk, eggnog, sour cream, whip cream, and more. In general, trademarks “identify and distinguish … goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”[18] Infringement of trademarks of food products in the U.S. are largely assessed based on whether or not a consumer is likely to be confused.[19] In Nabisco Brands, Inc. v. Conusa Corp., the 4th Circuit affirmed a North Carolina district court holding that the defendant’s sale of round hard candy with a hole in the middle infringed on the Lifesaver candy trademark because it was likely to cause confusion.[20]
Impossible Foods has already taken legal steps to protect its trademark. In 2020, the company filed an injunction with a District Court in the Hague to enjoin multinational food company Nestlé from selling its “Incredible” plant-based burgers in Europe due to trademark infringement.[21] In the court’s ruling, Nestlé was given four weeks to withdraw its product from the market or face a €25,000 fine per day for each of its 10 subsidiary companies.[22] Nestlé has rebranded the offering as “Sensational” on the continent, while it continues to sell “Awesome Burgers” in the United States.[23]
Beyond Meat
Like Impossible Foods, Beyond Meat holds multiple trademarks for its wide range of alternative protein products including Beyond Bacon,[24] Beyond Tuna,[25] Beyond Pork,[26] Beyond Lamb,[27] Beyond Pepperoni,[28] Beyond Shrimp,[29] and Beyond Milk.[30] However, many of these products are not yet available on the market.
In 2019, Beyond Meat filed a notice of opposition against California-based restaurant chain Del Taco for its trademark application for a product called Beyond Taco.[31] In its filing, Beyond Meat stated that the proposed registration was “highly similar in appearance, sound, meaning and overall commercial impression” and likely to cause confusion for consumers.[32] However, Beyond Meat withdrew its submission in August 2021, potentially due to a private agreement between the parties.[33]
In addition to more traditional intellectual property issues, Beyond Meat might face pushback from regulators on its name. “The FDA and the USDA or state regulators could take action to impact our ability to use the term ‘meat’ or similar words (such as ‘beef’) to describe our products,” the company wrote in an internal proposal about going public.[34] The dairy industry as already lobbied against the use of the word “milks” for plant-based alternatives like almond, oat, and soy.[35]
Looking Ahead
Given this growing popularity as well as environmental concerns associated with raising and eating meat,[36] the range of meat-like plant-based alternatives will certainly expand.[37] While the question remains which company will ultimately have the greatest market share of this range of products, the importance of retaining and protecting intellectual property rights will reign supreme.
Footnotes
