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RPC Bites 37 – another trade mark dispute brewing for Oatly? the ASA publishes mixed-media advertising advice, along with a pro-advertiser ruling on greenwashing

09 September 2021. Published by Ciara Cullen, Partner and Ben Mark, Partner

Welcome to RPC Bites. Our aim in the next 2 minutes is to provide you with a flavour of some key legal, regulatory and commercial developments in the Food & Drink sector over the last fortnight… with the occasional bit of industry gossip thrown in for good measure. Enjoy!!

Is another trade mark dispute brewing for Oatly? 

Not deterred by the loss of its High Court trade mark dispute with Glebe Farm Foods (Glebe Farm), Swedish plant-based giant, Oatly, could be set for another IP battle, this time with Nottingham-based SME, the Skinny Food Co.

In the Glebe Farm dispute, Oatly alleged that the packaging and name of Glebe Farm's 'PureOaty' drink infringed its registered trade marks, as well as bringing a claim in passing off. Ultimately, the court found in Glebe Farm's favour, dismissing Oatly's claims and concluding that there was no likelihood of confusion between the 'PureOaty' product and Oatly's registered trade marks. The full judgment can be found here.

In recent weeks, Oatly has instigated new proceedings, this time, the opposition of a UK trade mark application filed by the Skinny Food Co for the word 'Skinny Barista', in classes 29 and 30, for a range of food and drink products. Oatly holds EU trade marks for the words 'Hey Barista' and a logo featuring the word 'Barista'. Further applications for 'Barista' and 'Barista Edition' have also been pending since 2018.

A spokesperson for Oatly has reportedly stated that the Swedish brand has not sought to prevent the Skinny Food Co from using the term 'Skinny Barista', rather it only questions its registration, pending the EUIPO's decision on the registrability of Oatly's own 'Barista' applications. The Skinny Food Co has however accused the brand of 'bully tactics', noting that its Barista range does not contain any milk, milk substitute or oat-milk products and that coexistence should therefore be possible. 

We will closely follow this story as it progresses, as no doubt will food and drink businesses who use 'barista' in their product branding. Read more.

Lucozade ad did not breach greenwashing rules, the ASA finds 

In April 2021, a TV ad for sports drink Lucozade ran, featured a man throwing a Lucozade Energy bottle, complete with sleeve and lid, into a bin marked with a recycling symbol. The word 'recycle' and another recycling symbol also appeared on-screen towards the end of the ad. The ASA received a complaint about the ad from an individual who believed the bottle sleeve was not recyclable and who therefore considered the ad misleading.

In response to the complaint, Lucozade submitted that both the bottle and sleeve that featured in the ad were made from polyethylene terephthalate and that the cap was made from High Density Polyethylene plastic. All materials were technically recyclable (including the sleeve) and on that basis, the ad was not misleading. In support of its position, Lucozade submitted evidence from the Recycling Association and a third party recycling company, who confirmed that the bottle that featured in the ad was recyclable. Whilst the bottle sleeve was removed during the separation process and sent to another processor for further recycling, there was no need for local authorities to process the various components differently.

The ASA investigated the ad under BCAP Rules 3.1 (misleading advertising), 3.9 (substantiation) and 9.2 (environmental claims). On the information before it, the ASA did not uphold the complaint, finding that the bottle was indeed fully recyclable, as the ad portrayed. 

Notwithstanding the outcome, the ruling reminds advertisers of the need to consider all elements of a product before making green claims. Read more.

The ASA advises advertisers to target adverts, even in mixed-age media  

The ASA has recently released a research report entitled 'Protecting Children in Mixed-age Online Media'. This follows an investigation into how advertisements for alcohol, gambling and food and drink products deemed high in fat, salt or sugar (HFSS) are served to adult and child audiences. Mixed-age online media refers to online content such as websites and YouTube channels where adults comprise at least 75% of the overall audience.

According to the CAP Code, adverts for age-restricted products and services can technically be shown on mixed-age media due to their predominantly adult audience. However, in its recent report, the ASA calls on advertisers to use both audience and media targeting tools to minimise underage exposure to such adverts.

The ASA's advice comes after it utilised avatar technology to represent the online profiles of both adults and children in order to assess how age-restricted adverts were being delivered to different audience subgroups in mixed-age media over a 3 week trial period.

During the trial, the ASA noted that none of the Avatars were served with alcohol adverts. However, gambling and HFSS ads were distributed in largely similar numbers to child and adult avatars, with no noticeable skew towards adult avatars over child avatars, as is envisaged by CAP Guidance. Whilst there was no clear breach of the CAP Code, the ASA highlighted that advertisers need to take steps to meet the regulatory objective to minimise children's exposure to age-restricted adverts.

In order to facilitate that objective, the ASA encourages the use of 'addressable' ads. These are ads which use smart tools to target subgroups of an audience by utilising audience data such as age, location and online browsing interests. Read more.

A new breed of BrewDog?

Multinational brewery and pub chain BrewDog has recently filed an application with the UK Intellectual Property Office to trade mark 'SodaDog', in class 32, for a range of alcoholic and non-alcoholic beverages, including soft drinks and seltzers. The application was recently published in the Trade Marks Journal.

The move could suggest that BrewDog is looking to enter the soft drinks space, having already ventured into spirits and pre-made cocktails through its distilling arm, BrewDog Distilling Co. Although BrewDog has previously stated that potential product names are often registered as part of innovation but do not always come to fruition, this is definitely one to watch.

In other news, it was reported earlier this week that BrewDog has agreed a tie up with Japanese brewing giant, Asahi. The deal is BrewDog's first international joint venture and is seen by some as a bid to increase sales, ahead of an IPO. Read more.

Supermarkets continue to fly off the shelves 

2021 appears to be the year for US private equity (PE) funds, with approximately 65 UK acquisitions by US PE funds between January - July alone (almost double the number of transactions in 2020).

In the most recent turn of events and adding to the ongoing saga that has become the takeover of Morrisons, the supermarket's board has agreed an increased offer of £7bn from Clayton Dubilier & Rice LLC (CDR). As covered in the Summer Bumper Edition of RPC Bites, CDR's previous offer of £5.5bn was rejected by Morrisons in favour of a £6.3bn offer by Fortress Investments.

CDR's new and improved bid now implies an enterprise value of £9.7bn for the supermarket. According to Morrisons' chairman, Andy Higginson, the offer "represents good value for shareholders while at the same time protecting the fundamental character of Morrisons for all stakeholders.”

In other supermarket takeover news, Sainsbury’s' shares jumped 15% on Monday 23 August after reports that it may be the latest UK retailer to receive a US PE firm buyout bid. Apollo Global Management Inc. is reportedly exploring options with Sainsbury’s after missing out on Asda, as reported in
Issue 34 of RPC Bites. Readers can find out more about the Sainsbury's speculation here

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