Welcome to 'news' for the food and drink sector, helping to keep you up to date with legal and commercial industry-wide developments. Below you will find articles on:
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Love it or hate it… use of your brand by third parties
Many readers will be aware of the recent dispute between Unilever (who owns the well known Marmite brand) and the British National Party during the UK election campaign.
In brief, the BNP's party broadcast and website incorporated Marmite's well known "love it or hate it" slogan and an image of a Marmite jar (although the BNP claimed that it was not responsible for incorporating the Marmite image in the broadcast). Unilever promptly initiated injunction proceedings against the BNP and as a result, the promotional video was removed by the party.
Unauthorised and damaging brand use such as the 'Marmite case' are a nightmare scenario for brand owners, especially where the material is disseminated via the internet. As demonstrated in the BNP scenario, videos on YouTube can spread like wildfire and speed of response is therefore crucial.
Unauthorised brand use can give rise to a claim of trade mark infringement and/or passing off. In cases where serious brand damage may be caused within only hours or a couple of days, it is crucial to know what practical steps businesses should take when faced with an unwelcome and potentially damaging reference to their brand.
Following these simple steps can result in the damaging material being removed without the need for full blown litigation, thus providing a speedy and cost effective remedy.
By way of example, earlier this month Eversheds acted for a well known food business which became aware that a mock-up of its branded packaging was used by a third party to sell potentially dangerous substances over the internet. Within hours of being instructed we had identified the relevant parties, contacted the website owner and the hosting company by email and managed to have the offending material removed overnight.
For further information or advice, please contact Birgit Schluckebier.
Birgit Schluckebier
Solicitor
Tel: 0845 498 4026
birgitschluckebier [at] eversheds [dot] com
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The EU introduces the 'Euro-leaf' organic logo
The new EU Regulation governing the certification and labelling of organic products came into force on 1 January 2009. The Regulation establishes a clear legal framework for all stages of production, control and distribution of organic products within the EU, and sets out strict guidelines for their certification and labelling. Perhaps most importantly, the Regulation introduces a new mandatory EU-wide certifying symbol for organic products, in an effort to increase the visibility of organic food and drink for consumers throughout the EU.
The new logo, featuring a leaf shape made up of the 12 EU stars (dubbed the 'Euro-leaf') replaces the 'Organic Farming' logo which has been used since the late 1990s on a purely voluntary basis. From 1 July 2010, the new logo will become compulsory for all pre-packaged organic food produced within the EU and meeting the necessary standards. The logo will remain optional for imported produce after this date. Existing national logos will be allowed to appear alongside the EU symbol.
Benefits of EU-wide organic certification
The new organic logo will enable consumers in all EU member states to more easily recognise organic products, regardless of their origin. It will also provide consumers with confidence that products bearing the logo have been produced in accordance with the strict requirements of the Regulation, that is:
at least 95 per cent of the product's agricultural ingredients have been organically produced
the product complies with the rules of the official inspection scheme
the product has come directly from the producer or preparer in a sealed package.
The organic logo must be accompanied by an indication of the place where the raw materials were farmed, to allow consumers to identify whether the agricultural produce originates from within the EU or from elsewhere. The names of the producer, distributor and inspector must also be clearly marked on packaging.
What food producers and distributors should know
The 'Euro-leaf' has been registered as a collective trade mark by the European Community, and its use is subject to various guidelines and conditions. Traders may only use the logo on products that fall within the scope of the Regulation and that comply in full with its requirements. In addition, they are required to adhere to the terms of use and user manual published by the European Commission, which contain detailed rules about the application of the logo to packaging.
The logo may not be used on any products that are not governed by the Regulation, such as hunting or fishing equipment, cosmetics, textiles or pet products. Moreover, the logo does not apply to products that are still in conversion to organic, or to animal products which are only regulated through national rules (such as rabbit or snail produce).
The Commission also requires designated national bodies to monitor compliance with the Regulation and to carry out regular conformity assessments, preferably before products bearing the logo are placed on the market. The EC reserves the right to verify any products or marketing materials using the logo, and may withdraw a trader's right to market their products as organic (or may require them to be withdrawn from the market altogether) if they do not comply with the Regulation.
Producers and distributors of EU-manufactured pre-packaged organic goods should therefore ensure that any of their products which fall under the Regulation are strictly compliant with its requirements and correctly labelled. Although the new logo will become compulsory from 1 July 2010 on all products satisfying the Regulation criteria, there will be a two-year transitional period to allow its gradual introduction onto product packaging and promotional materials. Operators will therefore have until 1 July 2012 to phase out all their existing materials, and will be permitted to exhaust any stock that was packaged and labelled before 1 July 2010.
Further guidance on the new logo and it terms of use can be found on the European Commission's website.
For further information or advice, please contact Kaisa Mattila.
Kaisa Mattila
Solicitor
Tel: 0845 497 8227
kaisamattila [at] eversheds [dot] com
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Changes to FSA alert system
The Food Standards Agency (FSA) has confirmed changes to the way in which food safety alerts are communicated to consumers and local authorities. The new system was introduced on 1 June 2010. The alerts are a notification system to disseminate information about a product recall or withdrawal. However businesses have expressed concern for some time that the two food "alerts", "Food Alert: for Information" and "Food Alert: for Action" which are regularly published by the FSA have caused unnecessary consumer confusion.
The 'Food Alert: for Information' was used to provide information about an incident usually where appropriate action had already been taken by the company involved, for example where a product had previously been withdrawn or recalled. This type of alert (sent directly to local authorities and published on the FSA website) supplemented the business's own publicity and ensured that all local authorities were aware of the issue.
A large number of alerts are issued by the FSA each year, over 90 per cent of which are 'information' alerts rather than 'action' alerts. As nothing needs to be done in response to the information type of communication it is viewed by some as alarmist and unnecessary for this to be deemed an 'alert'.
From June 2010 the 'information' alerts will now be replaced by the following notices:
The content of the notices will remain substantially the same as before, however, the FSA maintains that the new notices are easier and quicker to produce. The Product Withdrawal Information Notice will only be issued in respect of withdrawals involving food safety, not products that are withdrawn purely because of a quality issue.
The original 'Food Alert: for Action' will continue to be used where local authorities need to take action in respect of a food hazard or food incident. This type of alert is issued when, in the FSA's view, companies cannot or will not adequately recall affected products. In this situation local authorities must undertake the action stipulated by the FSA promptly and in accordance with any risk assessment carried out by the Agency.
By distinguishing "information notices" from "alerts", the latter will be treated with more urgency and it will assist local authorities to focus attention on matters which require prompt action. However if the purpose of these changes is to draw attention to the "alerts" arguably they would have more force if the information "notices" did not exist or the information was conveyed to local authorities in a different way. This would also help to reduce consumer confusion by making the "alerts" meaningful and useful.
The latest information regarding product withdrawals and recalls, and also the Food Alert: for Action, can be sent to you by email or text if you subscribe online.
For further information or advice, please contact David Young.
David Young
Partner
Tel: 0845 497 1148
davidyoung [at] eversheds [dot] com
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© Eversheds LLP, 2010
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