ECJ: Use of product names such as “Tofu butter” or “Plant cheese” violates EU Law

In its decision of 14 June 2017, the ECJ stated that the terms milk as well as the names of other protected milk products cannot be used as part of product names for entirely vegan / vegetarian products (decision on case C-422/16). This also applies if the product names contain clarifying or descriptive further elements which indicate the pure vegetable nature of the product.

The ECJ was called to decide on these questions in preliminary ruling proceedings which were referred to it by the District Court Trier, Germany. In the proceedings before the District Court Trier, the Verband Sozialer Wettbewerb (“VSW”) a German association, whose responsibilities include combatting unfair competition, sued the company GmbH (“Tofutown”) for promoting and distributing its purely plant-based products under designations like “Soyatoo Tofu butter”, “Plant cheese” and “Veggie Cheese”. VSW was of the opinion that the promotion and distribution of the products under these names is contrary to the provision of § 3 a of the German Unfair Competition Act in conjunction with the regulations of Regulation (EU) No. 1308/2013 establishing a common organisation of the markets in agricultural products. That regulation provides, inter alia, that the name ‘milk’, as well as the names of other milk products, such as butter, cheese, cream, buttermilk, yoghurt etc., may in principle be used only for milk and milk products. Exceptions are only allowed for products whose nature is well-known due to their traditional use and/or where the designations are clearly used to describe characteristic properties of the product. The Regulation contains, in the second subparagraph of Annex VII, Part III, subparagraph 5, a list of the products which fall under this exception.

According to the ECJ, it is clear from the wording of the Regulation that the term “milk” should in principle not be used for a purely plant-based product. Likewise, terms for milk products such as butter, cheese, cream, buttermilk, yoghurt etc. cannot be used for purely plant-based products. No exceptions were given in the aforementioned list for the terms used, such as “Tofu butter”, “Plant cheese”, “Veggie cheese”, “Cream” when used for the attacked soy / tofu products.

Tofutown also could not successfully rely on a breach of the principle of equal treatment, as there was no unfair treatment compared to the producers of vegetarian or vegan substitutes for meat or fish which do not face comparable restrictions. These products are dissimilar and are subject to different rules.