The German company TofuTown produces and distributes vegetarian and vegan food products. In particular, it advertises and sells purely vegetable products under the names "Soyatoo Tofu Butter", "Plant Cheese", "Veggie Cheese", "Cream" and under other similar names. The Verband Sozialer Wettbewerb (Association for Social Competition), a German association whose tasks include combating unfair competition, considers this type of sales promotion to be a violation of Union regulations on the designation of milk and milk products. It has therefore sued TofuTown for injunctive relief before the Trier Regional Court.
TofuTown, on the other hand, is of the opinion that its advertising does not violate the regulations in question. Consumer understanding of these terms has changed dramatically in recent years. Moreover, the company does not use terms such as "butter" or "cream" in isolation, but only in connection with terms that contain a reference to the plant origin of the products in question, such as "tofu butter" or "rice spray cream".
Against this background, the Regional Court asked the Court of Justice to interpret the Union rules at issue.
In today's judgment, the Court finds that, with regard to marketing and advertising, the designation 'milk' is, in principle, reserved solely to milk of animal origin under the provisions in question. Moreover, under those provisions, with express exceptions, designations such as 'cream', 'cream', 'butter', 'cheese' and 'yoghurt' are reserved exclusively for milk products, that is to say, products derived from milk.
The Court concludes that the abovementioned names cannot lawfully be used to designate a purely vegetable product unless it is included in the list containing the exceptions, which is not the case with either soya or tofu.
The use of clarifying or descriptive additives, such as those used by TofuTown to indicate the plant origin of the product in question, does not affect this prohibition.
This interpretation of the provisions in question violates neither the principle of proportionality nor the principle of equal treatment.
With regard to the principle of proportionality, the Court points out, inter alia, that clarifying or descriptive additions cannot exclude with certainty a likelihood of confusion in the mind of the consumer.
As regards the principle of equal treatment, the Court finds that TofuTown cannot rely on unequal treatment and claim that producers of vegetarian or vegan meat or fish alternative products are not subject, as regards the use of sales names, to restrictions comparable to those which must be observed by producers of vegetarian or vegan alternative products for milk or milk products. This is because they are dissimilar products subject to different rules.
Judgment in Case C-422/16Verband Sozialer Wettbewerb e.V. v TofuTown.com GmbH
Source: Court of Justice of the European Union, Press Release No. 63/17 of 14 June 2017
GoldbergUllrich Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
