A recent decision of the Israeli Trademark Office confirmed the refusal to register a trademark for the wordmark JUST EGG. The decision was rendered by the Adjudicator Dr Roya Israeli on January 22, 2023.
Trademark Application No. 335823 was filed in Israel on January 27, 2021, in class 29 for “Plant-based egg substitute; liquid egg substitute” by a US company named Eat Just, Inc.
The Trademark Department of the Israeli Patent Office refused to register the mark on the grounds that the words’ combination JUST EGG for products other than eggs, may be misleading and therefore the mark is not eligible for registration according to Section 11(6) of the Israeli Trademarks Ordinance (new version) 1972.
The applicant is an American company, which specializes in food products based on plant-based egg substitutes.
The applicant claims that the consumer will not be misled into thinking that they are purchasing a product made from regular eggs, since its website clearly mentions that its products are made from plants and that “made from plants” is noted on the product packaging.
The applicant further adds that the mark was accepted for registration in various countries around the world, including the USA, Japan and Norway.
The adjudicator reminds that Section 11(6) of the Israeli Trademarks Ordinance states that “a trademark that is intended to mislead the public, a trademark that contains a false indication of origin and a trademark encouraging unfair competition in trade,” is not illegible for registration.
Pursuant to the literature, the public deception mentioned in this section refers not only to the source of the goods but also to the nature of the goods and their essence as appearing in the trademark application.
The meaning of the two words JUST EGG included in the requested mark is very simple and the average consumer, whether vegan or not, may be mistaken to think that this is a mixture made only from eggs and not from egg substitutes.
The applicant claimed that the word “JUST” has additional meanings, such as referring to “justice”, “fair” or “just” and thus may convey a message of sustainability and veganism. The Adjudicator considers that even if an average consumer will interpret the word “JUST” included in the mark as “fair”, the combination of words “JUST EGG” may imply that we are concerned by “free-range eggs” raised in a “fair” manner or “fairly produced eggs”, which does not contradict the misconception that the product is made from eggs.
Moreover, the fact that a word has several meanings and one of them is misleading is sufficient.
The mentions appearing on the product itself “made from plants” is not assisting, since the requested mark is JUST EGG only, without any reference to the composition of the mixture.
Furthermore, the fact that the consumer may check the nature of the products on the applicant’s website when purchasing is not assisting either since one should not require from the consumer the burden of reviewing the list of ingredients every time they purchase a product. The consumer expects a product labelled “JUST EGG” to contain eggs.
The alleged marketing of the products in designated sections for health and vegan products in supermarkets is also irrelevant in Israel where there is most of the time no clear separation between vegan products and other ones. In any event, it has already been established in precedent matters that when deception is examined, the mark and the goods are examined as filed and not pursuant to the circumstances in which actual use is made.
Finally, the fact that the mark is registered in other countries is of no assistance for considering the registrability in Israel and in any event, the Adjudicator notes that the mark was registered abroad under different versions.
Therefore, the Adjudicator maintained the refusal of the trademark application by the Trademark Department.
This decision is in line with the relatively strict approach of the Israeli Office in relation to misleading terms. It should be noted that the wordmark was also refused by the USPTO for being deceptive and only a logo version seems to have been registered in the USA.
Written by Irene Ezratty-Farhi, Founder of EZRATTY-FARHI Law Firm
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