Nestlé’s burgers are Sensational and Awesome, but not Incredible

Nestlé is to change the name of its plant-based “Incredible Burger” to “Sensational Burger” in European markets after a Dutch court granted an injunction filed by US start-up Impossible Foods.

In its preliminary judgment last week, the District Court in The Hague said Nestlé had infringed Impossible Foods’ trademarks, and was likely to confuse consumers. It prohibited use of the “Incredible” name throughout Europe, giving the Swiss food conglomerate four weeks to withdraw its products from retail shelves or face €25,000 a day in fines.

Nestlé said: “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. We will of course abide by this decision, but in parallel, we will file an appeal.” 

The legal fight is part of an intensifying battle between food producers, where the right adjective is a key weapon to convince consumers that a vegetarian burger can rival the taste of meat.

Nestlé has already opted to use “Awesome Burger” instead of “Incredible Burger” for the US market.

Sales of plant-based meat substitutes have jumped in western markets amid the coronavirus pandemic. In the US, the trend has been fuelled by slaughterhouses becoming Covid-19 hotspots, restricting meat supplies.

Even before the coronavirus crisis, entrepreneurs and start-ups have been launching new products. In Europe, competition has been hotting up, with brands including Beyond Meat, Moving Mountains, Meatless Farm and This vying for market share. Large food companies have also entered the growing market with Nestlé promoting its Garden Gourmet brand and Unilever buying Vegetarian Butcher.

Impossible Foods’ products have yet to enter the European markets, but last October it applied to sell its plant-based burgers with the region’s food safety authority. The company filed an application with the European Food Safety Authority to market soy leghemoglobin, which is made with genetically engineered yeast. The ingredient, known as heme, is a protein that gives the start-up’s plant-based burgers the meat flavour as well as replicating the “bloody” juices of meat.

The Dutch ruling noted that Nestlé had approached Impossible for a possible licensing or partnership deal in the summer of 2018 and entered into negotiations, but later that year announced that it would be launching its own product. The court stated that Nestlé appeared to have tried to frustrate Impossible Foods’ entry into the European market by offering its own plant-based foods under a similar name.

Impossible Foods filed for an injunction in The Hague after it withdrew similar requests last year from German regional courts in Frankfurt and Hamburg. The German courts told the US company that an injunction would not be imposed.

Dana Wagner, Impossible Foods’ chief legal officer, said while the company applauded other groups’ efforts to develop plant-based meat substitutes, “We don’t want them confusing people into thinking their products are our products.” He added: “We’re grateful that the court recognised the importance of our trademarks and supported our efforts to protect our brand against incursion from a powerful multinational giant.”