The advertising watchdog upheld a complaint that the quinoa, broccoli, peas and cucumber-based ‘Original Superfood Salad’ breached the NHCR through its use of the term ‘superfood’. Leon is appealing the ruling.
‘We told Leon Restaurants not to make references to general benefits of food for overall good health or health-related well-being in brand names unless those claims were accompanied by a permitted health or nutrition claim,” said the ASA.
Leon to challenge ASA decision
Leon challenged the ruling in a statement to us. “We created the original Superfood Salad in 2004 and it has since inspired many others. It would be a shame if the Leon Superfood Salad had to change its name. We respect the ASA process and will be taking the next step of applying for an independent review."
The principle that the description ‘superfood’ can’t be used because it constitutes a general health claim is well established – the ASA has made similar rulings to this effect in the past, as have authorities in other member states. Indeed, Leon Restaurants said it was aware that the term ‘superfoods’ was a general health claim.
However, the restaurant tried to invoke an exemption in Article 28(2) of the NHCR. This states that “products bearing trademarks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply.”
In order to succeed in using that exemption the restaurant had to prove that the term ‘Original Superfood Salad’ was a trademark or brand name. It couldn’t prove that the name was a trademark as it wasn’t registered as such, and so had to rely on proving that it was a brand name.
‘Original Superfood Salad’ not a brand name
The ASA decided it was not a brand name for a number of reasons explained by lawyer John Mitchell, partner at Blake Morgan.
“To be a brand name, it has to be something that could be protected by legal action against another business that starts to use the name (the legal term is a ‘passing off action’). The problem that Leon had was that they could not do this because the name was too generic for customers to regard it as something distinctive and the ingredients varied, which meant that it was not a distinctive product,” he said.
In addition, he explained that although Leon could show that the name was being used in August 2004, the restaurant could not show that it had been used continuously and had generated the sort of extensive trade between then and January 2005 that would indicate that goodwill attached to it to such an extent that it ought to be protected.
“The key ruling in the case is that to be a brand name it has to be something that could be protected by a passing off action,” Mitchell said.
He said that as a ruling it was a precedent, but that it didn’t surprise him because the point of article 28(2) was “the protection of the value of intellectual property, not the provision of a loophole”.
Has the ASA gone too far?
Jessica Burt, food and beverage lawyer for Mills and Reeve, described the ASA decision as “an interesting ruling” and said that the advertising watchdog had applied “a strict interpretation to the meaning of ‘brand names’, which is, of itself, an unregulated and broad term.”
She questioned whether the ASA had gone too far in applying criteria that would ordinarily be used to establish an action to protect an unregistered trade mark rather than a brand name.
“The UK Department of Health guidance on this topic simply references that manufacturers should be able to establish the brand name or trade mark was in use on the product prior to 1 January 2005 and take it that this interpretation is common across the EU,” she said.
She continued: “The ASA was going further than the specific wording of the EU regulation and UK government guidance in considering the terms ‘trade mark’ and ‘brand name’ as indistinguishable. When is a brand name a trade mark? When the ASA is considering the applicaiton of an exemption.”