Tread carefully with trademarks making health claims

Caution is advised when using a trademark for foods products, as all trademarks containing nutrition or health claims must now comply with the European Regulation on Claims. Following the expiry of the final transitional period earlier this year, exceptions will no longer be made for older trademarks.

A trademark making a nutritional or health claim may only be used for food products if it is accompanied by a more detailed nutrition or health claim that complies with the provisions of the European regulation.

What kind of trademarks fall into this category?

Some trademarks contain an intrinsic claim. Word trademarks containing elements such as ‘fit’ (Vifit), ‘vital’, ‘detox’, ‘diet’ or ‘sugar-free’, or pictorial trademarks depicting a heart or a stethoscope usually imply that a product is good for your health. It is also possible to register slogans as a trademark. A good example comes from the US: Breakfast of Champions simply has to be a healthy way to start the day (well, either that or it’s describing a doping product). It is usually pretty obvious when a trademark suggests that the product inside the packaging is good for your health.

Are these trademarks now forbidden?

No. It is not forbidden to use a trademark continuing an implicit nutrition or health claim, provided that it is used in combination with a more detailed nutrition or health claim that complies with the provisions set out in the European regulations.

These regulations are intended to ensure that consumers can trust that any such claims on a product or in advertisements are true and backed up by scientific evidence. A special register (the EU Register of Nutrition and Health Claims) contains a summary of all approved and rejected health claims and all permitted food claims. The claim sugar-free, for example, may only be used for products containing less than 0.5 grams of sugar per 100 grams. In the Netherlands, compliance with these regulations is monitored by the Netherlands Food and Consumer Product Safety Authority.

If in doubt…

Since much of the Claims Regulation has been in effect for some time, many brands already comply with its rules and conditions. If in doubt, and certainly when registering a new trademark it is advisable to contact one of our trademark attorneys. We will be happy to help you.