According to the complaint: “On July 22, 2019, Impossible Foods filed a Letter of Protest with the Canadian Intellectual Property Office bringing its prior and superior trademark rights to their attention… In approximately September 2021, Defendants nevertheless launched a new line of plant-based meat substitute food products all using the trademark INCREDIBLE.”
In a recent corporate update, Zoglo’s CEO Anthony Morello said the new Zoglo’s Incredible products are now available at leading retailers in Canada including Walmart and Sobeys, with the response from retailers and consumers proving “very positive to date.”
Morello also noted that Zoglo’s – which started trading on the Canadian Securities Exchange in summer 2021 - is in “discussions with major retailers in the US” about stocking the Incredible lineup.
‘Confusingly similar…’ Impossible Foods has invested ‘significant time, money and energy’ into brand building
According to Impossible Foods’ complaint, Zoglo’s INCREDIBLE trademarks are “confusingly similar” to the IMPOSSIBLE marks.
“They are likely to cause confusion as to whether the Defendants, their business, services and goods originate from or are sponsored by Impossible Foods and have or will give the false and misleading suggestion to consumers that the Defendants’ business, services and goods are somehow related to or affiliated with Impossible Foods, when that is not the case.
“Impossible Foods has invested significant time, money and energy into ensuring that the IMPOSSIBLE Trademarks clearly and uniquely identify Impossible Foods in the marketplace,” added Impossible Foods, which is seeking an order requiring Zoglo’s to stop using the INCREDIBLE mark and withdraw or abandon all trademark applications and business name registrations involving the word INCREDIBLE with the Canadian Intellectual Property Office.
Asked why Impossible Foods was pursuing this case against a smaller company, the spokesperson noted that it was the underdog when it challenged Nestlé in the EU two years ago over its Garden Gourmet Incredible Burgers, and prevailed, adding that: “We want consumers to feel confident in the brands and products they choose.
“A truly sustainable food system is going to require a whole ecosystem of great, accessible and available plant-based options. No one wins when there’s confusion, least of all consumers.”
The two brands were also deemed phonetically similar to a certain extent, with a small degree of conceptual similarity, said the court, which noted that both are plant-based meat substitutes, heightening the chance of confusion among consumers.
Nestlé – which has since replaced the word ‘Incredible’ with ‘Sensational’ on its Garden Gourmet burgers in Europe - appealed the ruling, telling FoodNavigator at the time that it was “disappointed by this provisional ruling as it is our belief that anyone should be able to use descriptive terms such as ‘incredible’ that explain the qualities of a product.”
Separately, Nestlé’s 2019 bid to get the European Trademark Office (EUIPO) to declare the Impossible Burger trademark invalid in the EU was rejected in May 2021.
*The case is IMPOSSIBLE FOODS INC vs ZOGLO’S INCREDIBLE FOOD INC. and ZOGLO’S INCREDIBLE FOOD CORP filed in Federal Court in Toronto, Canada, on June 14, 2022.
