Dunkin’ Donuts and Beyond Meat are being sued for trademark infringement over their slogan for their plant-based breakfast sandwich. “Great Taste, Plant-Based” is a catchy slogan, and rapper Snoop Dogg delivered the phrase at issue in the launch ad in 2019. In the ad, Snoop handed a sandwich to a customer, saying rhythmically, “You want that Plant-Based Great Taste fresh out of the oven?” The launch campaign sounds like a hit, and it was, sort of—since Dunkin’ was hit with a trademark infringement suit by the vegan food brand Vegadelphia Foods.
According to the complaint, Dunkin’ launched its plant based breakfast sandwich in collaboration with Beyond Meat in 2019, with the ad by Snoop Dogg. Vegadelphia alleges that it has been using the phrase “Where great taste is plant-based” since 2013, and registered a federal trademark for the slogan in 2015. Some of its branding consists of various-colored rays emanating from plant-based products, as does some of the branding from Dunkin’ and Beyond. The Vegadelphia complaint says Beyond applied for a trademark for “Plant-Based Great Taste” in 2020, but the U.S. Patent and Trademark Office rejected the application because of the likelihood of confusion with Vegadelphia’s trademark.
Vegadelphia’s trademark infringement case, in the U.S. District Court for the Middle District of Florida, alleges that the breakfast sandwich slogan is “an imitation of Vegadelphia’s trademark,” and also that Dunkin’ and Beyond Meat “used placement and imagery in their branding that is nearly identical to Vegadelphia’s.” Vegadelphia argued that the “overlap in font style, stacked text, and even sunray background imagery is beyond coincidence.”
Even though the breakfast sandwich was discontinued in 2021, the case lives on. Vegadelphia seeks an injunction, corrective advertising, statutory damages, and a portion of the Dunkin’ and Beyond profits; the sandwich’s sales allegedly exceeded $135 million over its first six months.
Likelihood of Confusion Survey Says!
In a high-profile case like this one, unless the defendants settle, attorneys for both sides will likely introduce survey evidence from expert witnesses. For this type of claim, plaintiffs must prove that the allegedly infringing slogan is likely to cause consumer confusion. A survey can provide this evidence. In this case, because the allegedly senior user is less well known than either Beyond or Dunkin’, the case may call for a survey on reverse confusion, in which users of Vegadelphia’s products would be surveyed.
At MMR Strategy Group, we are called into trademark infringement cases to produce litigation surveys that measure the likelihood of confusion, on behalf of both plaintiffs and defendants. It will be interesting to see whether either party presents survey evidence, how the surveys will be designed, and whether the court accepts them. We are hungry for more!