MYBACON’s not kosher, but SKYDIAMONDS are.


INSIGHT
Published
Apr 10th '24
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Meat substitute bacon is not real bacon, but lab-grown diamonds are just as real or ‘natural’ as mined diamonds. 

 

The General Court of the European Union recently upheld the decision of the EU Intellectual Property Office (and the Board of Appeal) to refuse an application from Myforest Foods for a trade mark for MYBACON for meat substitutes and fungi-based meat substitutes. The refusal was on the absolute grounds that the MYBACON mark was liable to deceive the ‘relevant public’ about the nature of the goods covered by the mark, being vegetarian meat substitutes for bacon. The court decided that there was a sufficiently serious risk of deception to necessitate the application being denied, even if a non-deceptive use of the mark would be possible. The ‘relevant public’ for these purposes is not just vegetarians, but anyone, as not just vegetarians might buy meat substitute products. As someone who has never eaten either bacon or vegetarian bacon, I can only conclude that makes me part of the ‘irrelevant public’.

 

Myforest Foods had been snuffling around for arguments to justify their application like a pig hunting for truffles. Their arguments were ingenious, but ultimately their application was for the chop. Their first argument was that people would understand ‘MY’ to be an abbreviation of “mycelium”, which means fungi. But that argument was demolished like The Little Pig’s house of straw when confronted by the exhalations of the Big Bad Woolf. It was blown away.

 

Their second argument was that people would understand ‘MY’ to be a possessive pronoun, as in ‘this is the bacon that I like, because I am a vegetarian’. An oxymoron if ever there was one. And you can’t make a silk purse out of a sow’s ear, so the court rejected that argument as well, concluding that even if only one interpretation out several alternatives leads to deception, the mark is deceptive and therefore not kosher. Which is ironic, because vegetarian bacon can be kosher.

 

So why has the Advertising Standards Authority (ASA) banned advertising for by Sky Mining for their Skydiamond brand of lab-grown diamonds? This ruling followed a solitaire, sorry, solitary complaint from the Natural Diamond Council (NDC).

 

Despite the sparkly name, the NDC is an organisation funded and financed by the world’s leading diamond mining companies whose members operate diamond mines in various sub-Saharan African nations. Their complaint was that the advertising for Skydiamonds in a press ad, Instagram page and website was misleading by using claims such as “Skydiamonds”, “diamonds”, “real diamonds” and “diamonds made entirely from the sky”

 

One flaw in the ASA’s adjudication is that they appear not to have considered these claims as a whole and in the context of the entire ads, as required by the CAP Code. When the claims are read in conjunction with other information in the ads, as well as with the images and videos on the website, it would be clear to our old friend the ‘Average Consumer’ that Skydiamonds are lab-grown, not mined.

 

Which leads us to the second flaw. The clue is in the name. Skydiamond is a registered trademark, and not deceptive. According to the ASA’s own rules a product name can be a claim. And this case, it is. The name reflects the fact that Skydiamonds are created by combining carbon captured from the atmosphere with harvested rainwater, and using solar and wind power provided by Ecotricity, the green energy company which is related to Sky Mining.

 

And there are no porkies in the name Skydiamond. The use of the word ‘diamond’ is completely kosher, consistent with the US Federal Trade Commission’s definition of a diamond, which is “a mineral consisting essentially of pure carbon crystallized in the isometric system. It is found in many colors. Its hardness is 10; its specific gravity is approximately 3.52; and it has a refractive index of 2.42.” A Skydiamond has exactly these physical, chemical and optical qualities, just like a mined diamond.

 

The NDC referred the ASA to the Diamond Terminology Guidelines published by the UK’s National Association of Jewellers (NAJ), which also seeks to protect the market for mined diamonds, which can be sold for higher prices than lab-grown diamonds. It is also notable that the NDC was one of the founders of the NAJ.

 

To protect the mined-diamond sector, the Guidelines therefore introduced an additional element to its definition of a diamond (and which the FTC had removed from its previous definition), which is that “A diamond always means a natural diamond”. In other words, only a mined diamond is a diamond, not a lab-grown diamond. Says the people who mine and sell mined diamonds. And because that additional requirement is at odds with the amended FTC definition, the DTG points out that the FTC’s “subtly different guidance….is not recognised for diamonds sold outside the US.” But just because they’re American, doesn’t mean they’re wrong (even if they can’t spell the word ‘colour’.).

 

Its worth remembering that there were no public complaints about the advertising by Sky Mining for Skydiamond, and there is no evidence that any consumer has been misled.

 

The whole point of advertising is that it promotes competition, innovation, and consumer choice. Of course, there must be limits, and misleading advertising must be sanctioned to protect both consumers and advertising itself. In this case, however, the NDC has produced a contentious definition of a diamond through its friends at the NAJ, and then persuaded the ASA to uphold their complaint on the basis that a lab-grown diamond is different from a mined diamond. In fact, they are physically, chemically, and optically the same, unlike bacon and vegetarian bacon, which are completely different beasts.

 

Marilyn Monroe veritably sizzled when she sang, “Diamonds are a girl’s best friend”. But these days, a modern girl might prefer a lab-grown diamond that does not come with all the environmental and ethical baggage of a mined diamond. And advertising regulation should not be used as a tool to stifle her choice of a lab-grown diamond unless there is a very good reason to do so. In this case, there was not.

 

ASA ruling: The Sky Mining Company Ltd t/a Sky Mining

 

 

Source: Reposted from Lewis Silkin – AdLaw. Author: Brinsley Dresden. Partner, Co-Head of Advertising & Marketing Law at Lewis Silkin

 

Need some promotional advice? If you want to understand more about how to make sure your marketing materials meet ad standards, please click here.

 

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