The District Court in The Hague last week handed down an injunction in favor of the US startup, which is preparing to launch its Impossible Burger in Europe, court papers show.

According to a preliminary ruling, Nestlé infringed upon the Impossible Burger trademark, which was registered in the European Union last year, by calling its product the Incredible Burger. The court said the words “impossible” and “incredible” sound and appear similar, and the overlap could confuse customers.

Nestlé (NSRGF) has been given four weeks to withdraw its “Incredible” products from retailers or face €25,000 ($27,700) a day in fines for each of its 10 subsidiary companies involved in the case.

“We are 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,” Nestlé said in a statement. “We will of course abide by this decision, but in parallel, we will file an appeal,” it added.

Nestlé said it was preparing to launch a new burger recipe using the “Sensational” descriptor. It will apply that name to all products that previously used the word “Incredible” in Europe, including its imitation meat patty, which becomes the “Sensational Burger.” The company uses Awesome Burger branding in the United States.

Growing consumption of plant-based proteins has pulled established food producers like Nestlé into the battle for market share, while enabling newcomers like Impossible Foods and Beyond Meat (BYND) to expand rapidly. Impossible Foods secured about $500 million in fresh funding in March, in a sign that investors are betting the trend is here to stay. Meat shortages in the United States linked to disruption caused by the coronavirus pandemic have driven consumption of meat substitutes even higher.

Nestlé approached Impossible Foods in the summer of 2018 to negotiate a possible licensing agreement regarding the Impossible Burger, according to the ruling, which cited legal submissions made by Impossible Foods.

The global food giant announced the launch of the Incredible Burger while these negotiations were still ongoing, raising the suspicion that it is trying to “frustrate the successful launch” of the Impossible Burger in Europe, the court found.

Nestlé, which had previously sought to declare the Impossible Burger trademark invalid, launched its Incredible Burger in Europe in April 2019 under its Garden Gourmet brand. That was followed by the September launch of the Awesome Burger in the United States. According to the judgment, Impossible Foods wrote to Nestlé USA in January 2019 warning that the Incredible Burger infringes on the American Impossible Burger trademark.

Impossible Foods is waiting for European food safety regulators to approve the genetically modified ingredients contained in its burger, according to the judgment. The Impossible Burger contains soy leghemoglobin (heme), a genetically modified yeast, which makes it taste like meat.

The US startup filed similar injunctions against Nestlé in regional German courts last year, but withdrew them after the courts told them they would not be granted.

Impossible Foods said in a statement that it applauds efforts to develop plant-based products but doesn’t want consumers to be confused. “We’re grateful that the court recognized the importance of our trademarks and supported our efforts to protect our brand against incursion from a powerful multinational giant,” said chief legal officer Dana Wagner.



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