Impossible vs Incredible round two: Impossible Foods sues Zoglo's Incredible Food over 'confusingly similar' trademarks
Impossible Foods - which recently accused Motif FoodWorks of infringing on one of its US patents and has also been involved in a long-running trademark dispute with Impossible X (now Impossible LLC) – said it had raised concerns that Zoglo's marks were “confusingly similar” to its own back in July 2019 after Zoglo’s started filing trademark applications in June 2019, but said Zoglo’s had gone ahead with plans to launch a range of plant-based meat products under the ‘Incredible’ brand in September 2021.
While ‘Incredible’ and ‘Impossible’ are different words, as a Dutch court found in May 2020 when it ruled against Nestlé, there is potential for consumer confusion if both brands are operating in the same category, and are “marketed and sold to the same consumers and through the same retail channels of trade," argued Impossible Foods, which filed a complaint* accusing Zoglo's of trademark infringement in federal court in Toronto this week.
Zoglo's COO Jim Delsnyder told us the company is not commenting on the litigation.
Letter of protest
Impossible, which launched in the US in 2016 and in Canada in 2020, now sells its wares across Canada through national grocery store chains and high-profile fast-food chains including Burger King.
Asked about IP, a spokesperson told us Impossible Foods had filed its trademarks before Zoglo’s: "Our earliest Impossible mark application in Canada was filed on April 7, 2014. Our Impossible Burger mark application in Canada was filed on October 12, 2018."
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 clash with Nestlé: From Incredible to Sensational...
In May 2020, the District Court of The Hague found that Nestlé’s Garden Gourmet Incredible Burger was visually similar to the Impossible Burger due to both words featuring the same number of letters, starting with the letter ‘I’, and ending with ‘ible’.
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 (unsuccessfully), 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.
