Good Meat is descriptive for sustainable meat-related services, plausibly deceptive for lab-grown meat

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 nonprofit focused on sustainable butchery and meat production practices. It provides farmers, ranchers, and butchers with marketing education and technical assistance; incubates “Meat Collectives” across the country; and educates consumers about responsible meat production and consumption practices. GMP owns two federally registered trademarks: the “GOOD MEAT” standard character mark and the “GOOD MEAT BREAKDOWN” design mark.

GMI is a food company which produces and sells cultivated, lab-grown meat from extracted animal cells.  GMI removes embryonic fertilized chicken eggs, minces the tissue and places the cells in culture, grows cells in culture, and then 3D prints the cells into shapes resembling cuts of chicken. Eat Just, GMI’s parent company, filed an ITU for a stylized GOOD Meat mark in 2020; in 2021, defendants entered into agreements granting their security interests in the intent-to-use application to a third party, and also Eat Just assigned the entirety of its business having an interest in the GMI mark to GMI. A notice of allowance issued in 2022.

The court denies a preliminary injunction on the trademark claims based on lack of likely success on the merits, but declines to dismiss either infringement or false advertising claims. The false advertising claims are based on the allegation that the defendants falsely advertise and promote their cultivated meat products as “real meat, made without ... taking a life” by “painlessly extract[ing] cells from an egg or living animal.”

Likely success on the merits: Strength was the sticking point. GMP was entitled to a strong but rebuttable presumption that the GOOD MEAT mark is inherently distinctive because the PTO registered the mark without requiring GMP to show secondary meaning. GMI successfully rebutted this presumption by showing, by a preponderance of the evidence, that the mark was merely descriptive, putting the burden back on GMP to show secondary meaning.

Under both tests used by the Ninth Circuit—the imagination test and the competitive need test—“good meat” was descriptive of GMP’s services:

Customers do not need to exercise their imaginations to understand that the term “GOOD MEAT,” as applied to educational services, refers to education concerning “responsible” consumption of animal meat: that is, meat that consumers can feel good about eating. There is little-to-no mental leap required to understand that GOOD MEAT describes GMP’s services. Indeed, the evidence shows that, in ordinary parlance, the term “good meat” is used routinely to refer to the concept of sustainably sourced meat.

The court noted that the fourth Google result for “good meat” is a book titled Good Meat: The Complete Guide to Sourcing and Cooking Sustainable Meat. This title was probative of how the term “good meat” is used in ordinary speech and demonstrated the descriptive nature of the term. So too with the competitors’ needs test. GMI identified, two LinkedIn pages run by international companies selling food products, GoodMeat and Good Meat Co.; the aforementioned book; and USPTO records showing over 570 live registered trademarks using the term “good” to describe meats and processed foods. Though registrations and foreign uses aren’t use in the US, “these examples are not being used to show a crowded trademark field or the extent of use in the term in the domestic market; they are used to show how difficult it is to market goods and services that support sustainably or responsibly sourced meat without using the term ‘good meat.’”

With the burden back on GMP to show secondary meaning, it didn’t do so. There was no evidence that consumers viewed the term “good meat” as referring a single source: that is, GMP. This actually should have ended the inquiry: no mark, no trademark infringement. But the court treated it as weighing against likely confusion.

GMP argued that it had organized Meat Collectives in numerous states and has promoted its services in various states, but didn’t offer evidence of how its efforts have been received in the actual marketplace. Its evidence was insufficient to gauge the mark’s commercial strength.

GMP then argued a reverse confusion theory, but there the important question is “whether the junior mark is so commercially strong as to overtake the senior mark.” [Again, reverse confusion shouldn’t be available where there’s no mark, and probably not even for a descriptive mark, given the risk that the adopter took on of choosing a descriptive term.] But there wasn’t evidence that the “mark” had been completely overtaken. For example, GMP was the sixth result in a Google search for “good meat,” behind two results unrelated to either GMP or GMI. [Query how personalization of search results affects this metric.]

Proximity of the goods: They were similar at a high level of abstraction. But GMP offers services, while GMI sells goods. “GMP focuses on butchering, slaughter, and the development 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.” Favored confusion.

Actual confusion: A GMP board member claimed to have received a LinkedIn message from students at an Italian university who mistakenly believed they were contacting GMI. “The Ninth Circuit has found mistakes made by a single retailer and single customer insufficient to support a showing of actual confusion. Other courts in this District have also found even stronger evidence of this type to be similarly unpersuasive.” This was even weaker evidence, given that the alleged confusion wasn’t among “industry journalists or the vendors that are GMP’s target customers.” Moreover, the evidence was even less compelling in light of the passage of time: if GMI had, as GMP alleged, flooded the online market with advertising, only one example of actual confusion disfavors a finding of likely confusion.

Marketing channels: “Merely showing that both businesses advertise on the internet is insufficient to show marketing channel convergence.” The marketing was otherwise quite distinct: GMP markets principally to ranchers and farmers, while GMI markets cultivated meat products made without ranching or farming. Disfavors confusion.

Degree of customer care: The record was mixed.

Ranchers and farmers are likely to exercise high levels of care in seeking out training programs and networking opportunities, but members of the public interested in sustainable meat practices may be less discerning. Likewise, GMI’s products are relatively cheap — its cultivated meat product is served as part of a tasting menu that costs only $70 despite being offered by a famous chef — but also cater to a relatively niche group of consumers who may exercise greater care in their meat consumption.

Neutral.

GMI’s intent: There was no evidence that GMI intentionally selected its mark to capitalize on GMP’s goodwill or to “palm off” its goods as that of GMP, or intended to flood the market (or that GMI should have known of the mark and disregarded the risk of reverse confusion).  

Likely expansion of product lines:  “Given their antithetical targets, it seems unlikely that the GMP and GMI would expand into each other’s marketing channels.…There is little risk that GMP will begin creating any lab-based meat product, and it is equally unlikely that GMI will begin providing educational services related to farmed and butchered meat.”

In essence, the same analysis applied to the GOOD MEAT BREAKDOWN mark, except that that mark was more dissimilar to GMI’s mark, which outweighed the greater conceptual strength of “good meat breakdown” and design.

Also, the length of time that GMP waited before seeking relief undercut any finding of imminent harm. GMI sent a C&D to GMP in April 2022 (whoops!) but did GMP didn’t sue until sixteen months later, then waited two more months before filing for preliminary relief. Also, GMI recently withdrew its application to sell its cultivated meat products in the domestic marketplace, further undercutting the idea that harm is imminent. The court also considered GMI’s investment of millions in its branding and advertising as weighing against relief.

Nonetheless, the complaint sufficiently alleged infringement. For purposes of a motion to dismiss, GMP alleged that its mark was valid and infringed.

False advertising: GMP plausibly alleged that consumers could understand “GOOD Meat” and “real meat” to mean meat from a once-living animal, or that consumers could believe that GMI’s cultivated meat products are developed entirely from chemical or plant-based sources, not from the use of an embryonic, fertilized egg. GMP also sufficiently alleged competitive injury “as its consumers may mistakenly believe that GMP endorses GMI’s statements and approach to food production, and resultingly decide to stop using GMP’s services.” [Notably, while false advertising doesn’t require competition, this particular theory of competitive harm seems parasitic on the infringement claim, and would have to fail if there was no likely confusion even if there was falsity.]

GMP also stated a plausible claim for declaratory judgment that GMI’s mark was deceptively misdescriptive. However, it didn’t plausibly allege that the mark violated the Lanham Act’s anti-ITU-trafficking rule. Even if the ITU was used as collateral for a loan, “[a] security interest in a mark, as collateral for a loan, does not fall within the plain language of section 1060(a). It also does not raise the policy concerns that underlie the Lanham Act’s anti-trafficking provision.” With no allegation of actual default or transfer to a lender, the claim was dismissed with leave to amend.