Good Meat is descriptive for sustainable meat-related services, plausibly deceptive for lab-grown meat
Rebecca Tushnet's 43(B)log 2024-04-15
Good Meat Project v.GOOD Meat, Inc., --- F.Supp.3d ---- , 2024 WL 1083462, No. 23-cv-04145-RFL (N.D. Cal. Feb. 12, 2024)
GMP is a nonprofitfocused on sustainable butchery and meat production practices. It providesfarmers, ranchers, and butchers with marketing education and technicalassistance; incubates “Meat Collectives” across the country; and educatesconsumers about responsible meat production and consumption practices. GMP ownstwo federally registered trademarks: the “GOOD MEAT” standard character markand the “GOOD MEAT BREAKDOWN” design mark.
The court denies apreliminary injunction on the trademark claims based on lack of likely successon the merits, but declines to dismiss either infringement or false advertisingclaims. The false advertising claims are based on the allegation that thedefendants falsely advertise and promote their cultivated meat products as“real meat, made without ... taking a life” by “painlessly extract[ing] cellsfrom an egg or living animal.”
Likely success onthe merits: Strength was the sticking point. GMP was entitled to a strong butrebuttable presumption that the GOOD MEAT mark is inherently distinctivebecause the PTO registered the mark without requiring GMP to show secondarymeaning. GMI successfully rebutted this presumption by showing, by a preponderanceof the evidence, that the mark was merely descriptive, putting the burden backon GMP to show secondary meaning.
Under both testsused by the Ninth Circuit—the imagination test and the competitive need test—“goodmeat” was descriptive of GMP’s services:
Customers do not need to exercise their imaginations to understand thatthe term “GOOD MEAT,” as applied to educational services, refers to educationconcerning “responsible” consumption of animal meat: that is, meat thatconsumers can feel good about eating. There is little-to-no mental leaprequired to understand that GOOD MEAT describes GMP’s services. Indeed, theevidence shows that, in ordinary parlance, the term “good meat” is usedroutinely to refer to the concept of sustainably sourced meat.
The court noted thatthe fourth Google result for “good meat” is a book titled Good Meat: TheComplete Guide to Sourcing and Cooking Sustainable Meat. This title wasprobative of how the term “good meat” is used in ordinary speech anddemonstrated the descriptive nature of the term. So too with the competitors’needs test. GMI identified, two LinkedIn pages run by international companiesselling food products, GoodMeat and Good Meat Co.; the aforementioned book; andUSPTO records showing over 570 live registered trademarks using the term “good”to describe meats and processed foods. Though registrations and foreign usesaren’t use in the US, “these examples are not being used to show a crowdedtrademark field or the extent of use in the term in the domestic market; theyare used to show how difficult it is to market goods and services that supportsustainably or responsibly sourced meat without using the term ‘good meat.’”
With the burden backon GMP to show secondary meaning, it didn’t do so. There was no evidence thatconsumers viewed the term “good meat” as referring a single source: that is,GMP. This actually should have ended the inquiry: no mark, no trademarkinfringement. But the court treated it as weighing against likely confusion.
GMP argued that ithad organized Meat Collectives in numerous states and has promoted its servicesin various states, but didn’t offer evidence of how its efforts have beenreceived in the actual marketplace. Its evidence was insufficient to gauge themark’s commercial strength.
GMP then argued areverse confusion theory, but there the important question is “whether thejunior mark is so commercially strong as to overtake the senior mark.” [Again,reverse confusion shouldn’t be available where there’s no mark, and probablynot even for a descriptive mark, given the risk that the adopter took on ofchoosing a descriptive term.] But there wasn’t evidence that the “mark” hadbeen completely overtaken. For example, GMP was the sixth result in a Googlesearch for “good meat,” behind two results unrelated to either GMP or GMI. [Queryhow personalization of search results affects this metric.]
Proximity of thegoods: They were similar at a high level of abstraction. But GMP offersservices, while GMI sells goods. “GMP focuses on butchering, slaughter, and thedevelopment of Meat Collectives. It provides educational services to butchers,ranchers, farmers, and consumers interested in sustainable meat production.GMI, by contrast, sells a food product that explicitly avoids butchering,ranching, and farming.” Disfavored confusion.
Mark similarity: “Visually,the marks are similar. Aurally and semantically, they are identical.” Favoredconfusion.
Actual confusion: AGMP board member claimed to have received a LinkedIn message from students atan Italian university who mistakenly believed they were contacting GMI. “TheNinth Circuit has found mistakes made by a single retailer and single customerinsufficient to support a showing of actual confusion. Other courts in thisDistrict have also found even stronger evidence of this type to be similarlyunpersuasive.” This was even weaker evidence, given that the alleged confusionwasn’t among “industry journalists or the vendors that are GMP’s targetcustomers.” Moreover, the evidence was even less compelling in light of thepassage of time: if GMI had, as GMP alleged, flooded the online market withadvertising, only one example of actual confusion disfavors a finding of likelyconfusion.
Marketing channels: “Merelyshowing that both businesses advertise on the internet is insufficient to showmarketing channel convergence.” The marketing was otherwise quite distinct: GMPmarkets principally to ranchers and farmers, while GMI markets cultivated meatproducts made without ranching or farming. Disfavors confusion.
Degree of customercare: The record was mixed.
Ranchers and farmers are likely to exercise high levels of care inseeking out training programs and networking opportunities, but members of thepublic interested in sustainable meat practices may be less discerning.Likewise, GMI’s products are relatively cheap — its cultivated meat product isserved as part of a tasting menu that costs only $70 despite being offered by afamous chef — but also cater to a relatively niche group of consumers who mayexercise greater care in their meat consumption.
Neutral.
GMI’s intent: Therewas no evidence that GMI intentionally selected its mark to capitalize on GMP’sgoodwill or to “palm off” its goods as that of GMP, or intended to flood themarket (or that GMI should have known of the mark and disregarded the risk ofreverse confusion).
Likely expansion ofproduct lines: “Given their antitheticaltargets, it seems unlikely that the GMP and GMI would expand into each other’smarketing channels.…There is little risk that GMP will begin creating anylab-based meat product, and it is equally unlikely that GMI will beginproviding educational services related to farmed and butchered meat.”
In essence, the sameanalysis applied to the GOOD MEAT BREAKDOWN mark, except that that mark wasmore dissimilar to GMI’s mark, which outweighed the greater conceptual strengthof “good meat breakdown” and design.
Also, the length oftime that GMP waited before seeking relief undercut any finding of imminentharm. GMI sent a C&D to GMP in April 2022 (whoops!) but did GMP didn’tsue until sixteen months later, then waited two more months before filing forpreliminary relief. Also, GMI recently withdrew its application to sell itscultivated meat products in the domestic marketplace, further undercutting theidea that harm is imminent. The court also considered GMI’s investment of millionsin its branding and advertising as weighing against relief.
Nonetheless, thecomplaint sufficiently alleged infringement. For purposes of a motion todismiss, GMP alleged that its mark was valid and infringed.
False advertising: GMPplausibly alleged that consumers could understand “GOOD Meat” and “real meat”to mean meat from a once-living animal, or that consumers could believe thatGMI’s cultivated meat products are developed entirely from chemical orplant-based sources, not from the use of an embryonic, fertilized egg. GMP alsosufficiently alleged competitive injury “as its consumers may mistakenlybelieve that GMP endorses GMI’s statements and approach to food production, andresultingly decide to stop using GMP’s services.” [Notably, while falseadvertising doesn’t require competition, this particular theory of competitiveharm seems parasitic on the infringement claim, and would have to fail if therewas no likely confusion even if there was falsity.]
GMP also stated aplausible claim for declaratory judgment that GMI’s mark was deceptivelymisdescriptive. However, it didn’t plausibly allege that the mark violated theLanham Act’s anti-ITU-trafficking rule. Even if the ITU was used as collateralfor a loan, “[a] security interest in a mark, as collateral for a loan, doesnot fall within the plain language of section 1060(a). It also does not raisethe policy concerns that underlie the Lanham Act’s anti-trafficking provision.”With no allegation of actual default or transfer to a lender, the claim wasdismissed with leave to amend.