Nestls Trademark Confusion May Cost The Company Credibility

On its website, Nestl, maker of some of the worlds most famous and beloved food and beverage brands, states under its

Ethical Business heading, Performing in an ethical manner is at the core of Nestls business approach. Upholding strong

ethical principles, not only in our direct business, but also throughout our entire value chain, is fundamental to how we

operate. It underpins the trust our consumers have in us as well as our license to operate.

We work to foster the do the right thing for the right reason mindset throughout the organization. Everyone at Nestl

contributes to Creating Shared Value, making our activities and operations more efficient and enhancing our competitive

advantage, by reinforcing our reputation.

Nestl fosters an internal and external environment of honesty, fair dealings and integrity in everything Nestl does. In

todays world, being a good corporate citizen, encouraging fair play and generating a compelling corporate culture for

employees and suppliers as well as all other stakeholders is essential. Increasingly, consumers make decisions relative to

the behaviors of the corporate parent.

Nestls vision statement indicates that Nestls ambition is to be a leading, competitive company. Nestled within

their corporate values, being competitive seems just. On the Corporate Business Principles page is the heading, Nestl

Code of Business Conduct. The basic tenets of behavior are stated,

Our Code of Business Conduct specifies certain non-negotiable minimum standards in key areas of employee behaviour,

including compliance with laws, conflicts of interests, anti-trust and fair dealing, bribery, corruption (UNGC Principle 10),

discrimination, harassment, and integrity. We believe in the importance of free competition and are committed to acting with

integrity in all situations.

So, it is deeply saddening and quite surprising that Nestl ran afoul of the EUs District Court in The Hague in Nestls battle

with Impossible Foods, maker of Impossible Burger. The Court had some harsh comments on Nestls business practices.

Nestl lost its trademark infringement case as the Court sided with Impossible Foods. But, it is clear from the Courts ruling

that this food fight was more than a mere trademark infringement case. Based on the Courts rulings, it appears that Nestl

made a decision to frustrate the European launch of Impossible Burger.

The Court became suspicious of Nestls motives. The Court learned that Nestl had originally wanted to license Impossible

Burger for Europe. After the initial approach and discussion occurred where Nestl learned a lot from Impossible Foods

documents, Nestl decided to create its own plant-based burger patty, named Incredible Burger in Europe. (The U.S.

version is Awesome Burger.) The Courts opinion was that the confusion aspect of the case was in behest of Nestl wanting

Impossible Burgers potential European market share for itself. The case of Impossible Burger vs. Incredible Burger is

essentially a case of trademark infringement with an ulterior motive. In other words, Nestl violated its sanctified ethics and

principles on the altar of market dominance.

Impossible Burger is the U.S. brand launched from Impossible Foods in 2016. It is the epitome of the Impossible Foods

mission to create products with taste and nutritional benefits of meat without all the environmental and health baggage of

meat. A science-driven company, Impossible Foods research creates products with plant proteins that recreate meat

nutrition as well as having all the hedonic effects of eating meat.

Nestl saw an opening to get into the European market before Impossible Burger. Nestl ditched its desire to license

Impossible Burger and created its own product, Incredible Burger. Impossible Foods brought the trademark infringement

case stating that consumers would be confused, thinking that Incredible Burger was in fact Impossible Burger and of the

same source as Impossible Burger.

Confusion cases are frequent. The problem is that confusion is a consumers perception when making a purchase decision.

In the U.S., trademark infringement exists if a trademark owner can show that a competitor is using a similar trademark that

is likely to cause confusion, cause mistake or to deceive. Some cases are necessary and understandable such as

Kimberly Clarks Huggies diapers vs. H. Douglas Enter Inc.s, Duggies diapers or W. L. Gores Glide dental floss vs.

Johnson and Johnsons Easy Slide. Others are head-shakers like General Mills 1983 case (which it ultimately dropped)

against Richard Wehdes (pronounced Wee-Dee) and Charles Morris Chicago area hot dog restaurant, Wee-Dees Wee

Nees. General Mills argument was that Wee-Dee was too similar to Wheaties.

Similarity between trademarks is considered the most important consideration and seminal factor in deciding whether

there is confusion. In fact, similarity between names is the basis of many trademark infringement cases. Additionally, the

U.S. courts have judged that similarity in sound and meaning are two separate, important criteria for determining confusion.

The EU Court ruled that the similarity of the sound and meanings of the words Impossible and Incredible were very strong.

The Court ruled that both words share visual similarity. Both words have the same number of letters and, interestingly, both

words have same letters in same places of their spellings. These similarities could cause confusion. And, in deciding for

Impossible Foods, the EU Court stated that already without Impossible Burger yet in European markets there were

instances of customer confusion even though perceptions of Nestls Incredible Burger are that it is of poorer quality.

Nestl argued that Incredible Burger communicated that the burger would have exceptional quality and because the

packaging also says Gourmet Garden that the name Incredible Burger described information as to the product itself. In

other words, Incredible Burger with Gourmet Garden would communicate plant-based burger. The Court nixed this line of

argument because Incredible Burger is just not the same as Lentil Burger or Cheese Burger in that the word Incredible

does not convey actual information about the products makeup.

It appears that the EU Court sensed Nestls corporate behavior was sketchy. Not only did Nestl create a similar product

with a similar name, but also the Court found that Nestl knew of the Impossible Burger trademark in advance of launching

their Incredible Burger. This means that Nestl launched Incredible Burger at risk thereby exposing itself to not only legal

measures but also financial consequences.

Based on the judgment, Nestl has four weeks in which to change the name of its product, in other words, rebrand the

plant-based burger. Nestl has agreed to change the name of its product to Sensational Burger even though a

spokesperson indicated that Nestl would appeal the ruling.

Sloppy naming is one thing. This happens often. IHGs Hotel Indigo is not trademarked, as it could not be owned worldwide.

But, causing confusion in order to intentionally foil a competitor is bad behavior, especially from an enterprise that prides

itself on its honest, above-board, ethical business practices

Nestl is a big powerful company with many great brands. Why would a company besmirch its values and credibility by

behaving in such an underhanded, unethical manner? The fact that the Court recognized how Nestl used what it learned

from Impossible Foods to then quickly create its own brand, albeit of lesser quality, seems to fly in the face of the Nestls

own ethics proclamations. When younger consumers are increasingly making purchase decisions on the basis of corporate

behavior, this Nestl behavior seems rather shortsighted. And, it undermines some of the principles that make Nestl so

attractive relative to other corporations.

Being big and powerful can be an enormous asset for a company, but only if that size and strength are used wisely. As the

legal counsel for Impossible Foods, Dana Wagner, told Financial Times, Were grateful that the court recognized the

importance of our trademarks and supported our efforts to protect our brand against incursion from a powerful multinational

giant.

Competing with a competitor is acceptable: our brand landscape is filled with highly successful fast followers. Corporate

conniving to shut off competition is unacceptable. Citizens expect corporations to do the right thing. Betraying the basics of

good behavior has no place in our changing world.

Question 6 - Sensitisation of ethical issues (25 Marks)

Use Nestle as an example to explain the sensitisation of ethical issues in organisations