Why can a small brother and sister business apply to the United States Patent and Trademark Office (USPTO) to trademark “the Vegan Butcher” and have it turned down?
Why can the food giant Nestlé apply to trademark “the Vegan Butcher” and have it accepted shortly afterwards?
Me neither.
Here is the story of a David and Goliath legal battle brewing in the United States. Aubry and Kale Walch, owners of The Herbivorous Butcher are not taking this lying down. They have decided to take on the full might of Nestlé contesting the decision to grant Nestlé the trademark.
The growth in plant-based foods has been a grassroots movement spanning many years. Its success began decades ago and its initial proponents were regarded by mainstream society as slightly weird. This has been a bottom-up movement which is now becoming mainstream. It is the success of countless small businesses around the world such as the Herbivorous Butcher in Minneapolis that has made the likes of Nestlé sit up and take notice as it now attempts to use its muscle and power in a top-down move to cash in on the vegan trend.
Meatless in Minneapolis
Aubry and Kale Walch who are brother and sister began their business at farmers markets in 2014. Aubry once came out with the idea of opening a vegan butcher shop, and everyone laughed until they realized what a great idea it was. So quite naturally the Herbivorous Butcher began to use the term “vegan butcher” on their labels and in its marketing.
They have established quite a name for themselves. They won the Vegan Vegetarian Food Trucker of the Year 2019 – Mobile Cuisine award, having also won it the year before. They have also opened a shop in Minneapolis where they produce handcrafted food. They have reached a very impressive $3 million turnover last year.
In August 2017, the Herbivorous Butcher applied for a trademark in respect of “the Vegan Butcher” together with other phrases: “Meat-Free Meats,” “Sister Butcher” and “Brother Butcher.”
Four months later, the trademarks were granted but not for “The Vegan Butcher.” The phrase was deemed “merely descriptive” under the federal Trademark Act. The brother and sister team accepted the decision but nevertheless continued to use the phrase.
Enter Nestlé which had acquired the Sweet Earth Foods in 2017. Sweet Earth’s products are now carried in Whole Foods, Target and Walmart. They filed the paperwork to trademark the exact same phrase a mere six weeks after the Herbivorous Butcher abandoned its attempt. This new application is based on their “future intent” to use the phrase.
In February 2019, the application by Nestlé and Sweet Earth was approved. A different trademark official was involved.
David and Goliath legal battle playing out in the U.S. Patent and Trademark Office
“For some reason, it was denied for us, but not for them,” said Aubry Walch. “There are a lot of vegan butcher shops across the United States. We’re all a part of the same team. We just don’t want the largest company in the world to come in and say we’re going to take ‘The Vegan Butcher.’ It felt suspicious that it was immediately OK for them, but not for us.”
“The question is whether said Roseville attorney
Kenneth Kunkle, attorney acting for the Walches, summarises the legal issue relating to the phrase “which was coined and associated with [the Herbivorous Butcher], whether somebody else can swoop in and take control of that not only from [the Herbivorous Butcher] but from the marketplace in general”.
The case is now entering the discovery phase. A court case and trial are a distinct possibility. Aubry and Kale are determined to fight what they believe is just.
