RPC Bites 34 – Mediterranean tonic water too descriptive for the EUIPO, enhanced regulation for alcohol ads and UK-Australia trade deal agreed in principle

Welcome to RPC Bites. Our intention in the subsequent 2 minutes is to offer you a flavour of some key authorized, regulatory and industrial developments in the Food & Drink sector over the final fortnight… with the occasional little bit of business gossip thrown in for good measure. Enjoy!!

Access the full version of RPC Bites here.

Lidl v Fever-Tree: ‘Mediterranean Tonic Water’ held ‘too descriptive’ by the EUIPO

On 2 June 2021, the EU Intellectual Property (*34*) Fifth Board of Appeal (BoA) declared that two Fever-Tree trade mark registrations for ‘MEDITERRANEAN TONIC WATER’ have been invalid, on grounds that they have been descriptive. The choice follows an enchantment in opposition to two first occasion choices by grocery store, Lidl.

Lidl argued that the trade marks, which have been registered in lessons 32 (non-alcoholic drinks) and 33 (alcoholic drinks) respectively, have been purely descriptive of the items that their specs designated. Lidl additionally contended that the use of the phrase ‘MEDITERRANEAN’ referred to the Mediterranean area, which is internationally famend for meals, drinks and citrus fruits. On that foundation, Lidl argued that the public would perceive the marks to be purely descriptive of the geographical origin, elements, high quality and/or style of Fever-Tree’s items.

Upholding Lidl’s enchantment, the BoA discovered the public would perceive the marks to be descriptive of carbonated drinks, both from the Mediterranean or containing elements typical of that area. Evidence which confirmed Fever-Tree utilizing its trade marks in a purely descriptive sense was additionally discovered to be persuasive. It learn: “By mixing the important oils from herbs that we now have gathered from round the Mediterranean shore with highest-high quality quinine from the ‘fever bushes’ of the Democratic Republic of the Congo, we now have created a fragile, floral tonic water.”

As nicely as discovering that the marks have been purely descriptive and subsequently incapable of performing their important perform of designating Fever-Tree as the origin of the items, the BoA additionally discovered that the marks had not acquired distinctiveness via use. In coming to its choice, the BoA emphasised the sturdy public curiosity in making certain that descriptive indicators, particularly geographical ones, are free for use by all.

The full choices can be found to obtain from the EUIPO’s website.

Government confirms its plans to ban TV ads for HFSS meals earlier than 9pm watershed

In the previous issue of RPC Bites, we reported on the potential affect of anticipated adjustments to the guidelines on promoting meals and drink merchandise deemed excessive in fats, salt and/or sugar (HFSS). In guidance printed final Thursday, the Government has now confirmed plans to ban all TV ads for HFSS items earlier than a 9pm watershed. From 2023, HFSS TV adverts will solely be permitted between the hours of 9pm and 5.30am.

The laws will come into power at the finish of subsequent yr and will apply to TV and UK on-demand programmes, in addition to restrictions being applied on paid-for promoting of HFSS meals on-line. The Government estimates that the TV and on-line restrictions might take away as much as 7.2B energy from kids’s diets per yr in the UK. It believes this might cut back the variety of overweight kids by greater than 20,000.

It seems that the Government has listened to considerations inside the business, concerning the extraordinarily huge-ranging scope of the proposed restrictions. The newest steerage confirms that the laws will solely apply to meals and drink merchandise of most concern to childhood weight problems and that numerous merchandise, which when consumed in moderation, can kind a part of a balanced food regimen, won’t face advert restrictions. Examples of excluded merchandise, technically deemed HFSS, embrace honey, olive oil, avocados and Marmite. The restrictions may even solely apply to companies with greater than 250 workers, bringing welcome aid to SMEs.

Report on kids’s publicity to alcohol and playing ads launched by the ASA

The ASA has been monitoring kids’s publicity to age-restricted TV ads for a while now. It just lately printed an up to date report, which particularly considerations TV ads for alcohol and playing merchandise between 2008 and 2020 (2008 being the first full yr in which the playing promoting guidelines have been applied).

Under rule 32.2 of the BCAP Code, alcoholic drinks containing 1.2% ABV or extra will not be marketed in or adjoining to programmes commissioned for, principally directed at or prone to enchantment notably to audiences beneath the age of 18. An identical prohibition applies to alcoholic drinks with an ABV of lower than 1.2%, for audiences aged beneath 16 years.

The report evidences that between 2008 and 2020, kids’s publicity to alcohol TV ads decreased considerably, from a median of two.8 ads per week in 2008 to 0.9 ads per week in 2020. By distinction, kids’s publicity to playing ads has barely elevated, from 2.2 ads per week in 2008, to 2.8 ads per week in 2020, albeit this peaked, in 2013, at 4.4 ads per week.

The decline follows a basic development whereby kids are spending much less time watching conventional linear tv and are consequently being uncovered to much less TV ads throughout the board. However, the report theorises that though the method of consumption has modified, the quantity has not, with many kids opting to devour media on-line, through on-demand providers, video streaming channels and social media platforms. In help of this, Ofcom knowledge exhibits that 97% of youngsters between the ages of 5 and 15 watch movies on content material sharing platforms and that 70% of youngsters between the ages of 8 and 15 elevated their video sharing platform consumption throughout the pandemic.

The CAP Code (the BCAP Code’s non-broadcasting counterpart) applies to on-line ads, together with ‘paid for’ ads on Video on Demand platforms and elsewhere on-line (assume banners, pop-ups, pre-rolls and ‘ppc’ ads on search engines like google) and ‘promoted’ social media posts. To keep away from falling foul of the CAP Code, the report highlights the want for companies to fastidiously regulate the ads that they run throughout all mediums, not simply the conventional codecs, which youthful audiences look like conclusively shifting away from. Read more

What’s your recipe field’s carbon footprint? Ask Gousto

In the wake of the COVID-19 pandemic and the related lockdowns, demand for recipe field subscription providers has (maybe unsurprisingly) soared. Not content material to relaxation on their laurels, widespread manufacturers at the moment are diversifying their choices, in an try to cement their positions in the market.

One such model is Gousto which, in a recipe field first, just lately introduced the launch of a carbon labelling trial. Next yr, Gousto prospects will have the ability to view the carbon footprint of their proposed meals earlier than ordering and resolve whether or not to swap out elements for alternate options with decrease carbon footprints. This will afford shoppers the alternative to make extra environmentally aware meals selections, in only a few clicks.

The trial is only one of a number of latest environmental wins for Gousto: At the begin of the month, a report by main meals sustainability thinktank, Foodsteps, highlighted that Gousto recipe containers produce 23% much less carbon emissions than an equal grocery store store. This is because of a mixture of decreased meals wastage and decrease provide chain emissions (Gousto offers a house supply service, subsequently eliminating the want for each suppliers and shoppers to journey to supermarkets. The model can also be dedicated to offering 100% UK meat). Gousto’s weblog on the findings of the report might be seen here.

However, avid RPC Bites readers will do not forget that the street hasn’t all the time been so inexperienced for Gousto. In Issue 23 of RPC Bites, we reported that the model had been discovered to have breached the CAP Code (Rule 11.3), by failing to substantiate claims that its Eco Chill Box was “100% plastic free” and “100% recyclable”. The choice highlighted the perils of so-known as ‘greenwashing’, a present focus for the Competition and Markets Authority (CMA), as reported in our latest F&D weblog. Read more

Tim Tam meets the Penguin as trade deal between the UK and Australia is agreed

In the earlier challenge of RPC Bites, we reported that UK farmers had raised considerations concerning the trade deal proposed by the UK Government to its Australian counterpart. As of 15 June 2021, an settlement in principle has formally been reached between the two nations, with phrases to be finalised in due course.

A key function of the settlement is the promise of “mechanisms to take away trade obstacles, together with tariff and non-tariff obstacles, to make it simpler for each side to trade with one another”. This means the elimination of customs duties and technical consultations on non-tariff measures at the request of both nation. This so-known as ‘liberalisation’ is unlikely to be nicely-obtained by UK farmers nevertheless, who concern they are going to be unable to compete with Australia’s huge cattle and sheep stations.

One optimistic growth nevertheless is affirmation that imports “will nonetheless have to satisfy the identical respective UK and Australian meals security and biosecurity requirements as they did earlier than”. This signifies that a lot-feared hormone injected meat will stay off the menu, for now.

More info on the key elements of the deal might be learn here.

Issa brothers dash to the end line in Asda acquisition

In a deal reportedly value a whopping £6.8B, the CMA has given the all clear for Bellis Acquisition Company 3 Limited (a enterprise run by the billionaire Issa brothers) to purchase UK grocery store chain, Asda.

In May this yr, the CMA steered it will settle for undertakings from the potential new homeowners for the sale of 27 Asda petrol garages to fulfill petrol-pump value considerations in areas the place each Asda and EG Group (the forecourt enterprise) function. Such undertakings have now been offered by Bellis, which is run by the homeowners of EG Group and backed by TDR Capital. The deal confirms EG Group’s (together with TDR’s) majority stake in the grocery store, with Walmart retaining a minority share.

In the midst of conflicting stories round Asda’s earnings (some report a 17% fall throughout the pandemic, whereas others categorical a 7.3% enhance in gross sales throughout the first quarter of 2021), TDR and the Issa brothers have already indicated their plans to extend progress. In a joint assertion, they outlined methods to speed up Asda’s on-line providing, enhance buyer comfort and supply extra native meals. Read more

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