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RPC Bites 44 - UK IPO finds gin-uine use of trade mark, another copycat product battle and plastic packaging to be scrapped for fruit and veg

Published on 15 March 2022

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!!

Food and drink retailers stand with Ukraine

As the tragic situation in Ukraine intensifies, various food and drink retailers have pledged support to the country. Brewing giant AB InBev announced on LinkedIn that its Belgian based Leuven brewery will fill half a million cans of still water, for transportation to border checkpoints in Poland and Moldova.

In a similar vein, Tesco distribution centres in Budapest, Bratislava and Prague have been working to provide relief to Ukrainian refugees. Countless grocers, including Morrisons, Co-Op, Waitrose, Aldi and Sainsbury's have removed Russian sourced products - primarily vodka - from their shelves and online offerings and M&S has suspended all shipments to its Russian stores.

Over the course of the last fortnight, the F&D sector has already begun to see the immense impact of Russia's invasion of Ukraine, and the unfolding human tragedy. At RPC, we are united in our condemnation of the invasion and our thoughts are for the safety of all the people in, and who have fled, Ukraine, as well as colleagues, clients and friends who have families and loved ones who have been affected. Read more

Aldi applies to trade mark "Cuthbert"

In Issue 43 of RPC Bites, we reported that Aldi and M&S had reached a confidential settlement in respect of the well-publicised 'Colin v Cuthbert' dispute.

Following publication in the Trade Marks Journal on 18 February 2022, it recently came to light that Aldi has filed to trade mark the now notorious name. Aldi's specification, which goes beyond cakes and other bakery items, covers a range of goods and services including coasters, toys and other merchandise.

The move appears to be intended to exploit Cuthbert, who became somewhat of a social media star during the dispute, and to leverage his new-found fame. Following its publication, the application is now subject to a two-month opposition period. If no oppositions are filed, we could see Cuthbert™ branded goods appearing on shelves as soon as late Spring 2022. Read more

UK IPO finds gin-uine use of trade mark

The UKIPO has rejected an application by Inver House Distillers for the revocation of a competitor's trade mark. The decision was reached on the basis that genuine use of the mark in question, in the UK, had been successfully demonstrated.

In July 2014, the contested mark, which incorporates the 'Master's logo', a lion device and the sharp shape of the product's bottle, was registered for gin (specifically, London Dry Gin) in class 33, in the EU. Following the expiry of the Brexit transition period on 31 December 2020, a comparable UK trade mark was automatically created by the UKIPO. Inver sought to revoke the UK mark under section 46 of the Trade Marks Act 1994 on the grounds of non-use between July 2014 to 2019 and March 2016 to March 2021 (the Relevant Period).

The UKIPO considered there was a lack of evidence from the trade mark owner, who submitted only 17 invoices and a handful of social media posts and press coverage in support of its case. In particular, the UKIPO noted that the provision of 17 invoices over the course of the Relevant Period was "far from overwhelming," especially when examined through the lens of the UK's thriving gin market. Even so, it concluded that genuine use of the registration had been shown. This was because there was a "consistent and repeated pattern of sales to an exclusive retailer throughout the relevant periods" and because the owner had "attempted to create and maintain a market for their goods under their mark".

The decision will provide comfort to brand owners, in that it demonstrates that use of a trade mark does not have to be substantial to be genuine. Read more

Scrapping wrapping on fruit and veg

Wrap, a UK-based waste reduction charity, is working with all major supermarkets and suppliers, under the Courtauld Commitment 2030 and The UK Plastics Pact. The aim is to: (i) scrap plastic packaging for fresh fruit and vegetables; and (ii) remove 'best before' dates, unless it can be shown that the label reduces overall food wastage.

Wrap's proposals are the result of an 18-month research project which found that selling all apples, bananas and potatoes loose could "save 60,000 tonnes of food waste and could reduce plastic packaging by 8,800 tonnes per year." The project also found that removing best before labels from the same products, plus cucumbers and broccoli, could remove a further 50,000 tonnes of home food waste each year.

Although seemingly a big step forward, implementing the changes will likely take some time and may vary from supermarket to supermarket, depending on capabilities such as in store checkouts with the ability to weigh loose items. Read more

M&S meets its match(stick)

M&S found itself at the centre of yet another copycat product dispute last month, only this time, the high-end grocer was the one in the firing line. Choc on Choc, a family-run, Bath based business took to social media to allege that M&S's Valentine's Day-themed "Perfect Match" chocolate matchsticks were a near identical copy of a product that Choc on Choc had been selling since 2015.

Following thousands of online messages of support from other small businesses and consumers, M&S reached out to Choc on Choc to settle the dispute. Choc on Choc owner, Flo Broughton, confirmed that the retailer has been both cooperative and respectful, revealing that it had committed to selling Choc on Choc's chocolate matchsticks and that deals to sell personalised Mother's Day and Easter product ranges are also underway. Read more

A new age of ID verification

Major supermarkets and wholesalers across the country are currently trialling the Home Office's digital age verification technology for alcohol purchases. The trial is part of the Home Office's 'regulatory sandbox'. This enables businesses to explore new technologies, with funding from private enterprises, without being limited by certain rules and regulations which might otherwise prohibit such exploration.

Using cameras and age estimation software provided by the Yoti ID app, the digital verification technology can determine whether customers appear over the age of 25. If they do not, the customer will be asked to scan a Government approved form of ID to verify their age. Customers who do not wish to take part in the trial will continue to be able to show their ID to a member of staff.

Asda shoppers in Pudsey and Stevenage can now use the technology at self-checkouts and Morrisons is set to conduct trials in three of its Yorkshire stores. The hope is that the technology will streamline the shopping process for customers and retailers alike. Read more

CMA launches inquiry into Morrisons takeover

In Issue 37 of RPC Bites, we reported on a swathe of acquisitions by US private equity funds, including the takeover of Morrisons, by Clayton Dubilier & Rice LLC (CDR). The CMA has now launched an inquiry to examine whether the acquisition will "result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services".

Experts have particular concerns about whether the takeover would result in higher fuel prices on UK petrol forecourts. CDR acquired Motor Fuel Group in 2015 and, as a result, owns more than 900 petrol stations in the UK, of which, Morrisons operates around 335. The CMA passed an initial enforcement notice in October 2021, ordering CDR to ensure that these operations remained separate until the potential impact on consumers has been properly considered.

The CMA is currently set to announce its Phase 1 decision on 24 March 2022 so stay tuned to RPC Bites for further updates. Read more

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