The Herbivorous Butcher takes on Nestlé in David and Goliath trademark battle

This battle won't get bloody, but it might get ugly.

The question is whether the phrase "The Vegan Butcher" can be trademarked. And if so, who can lay claim to it?

The Herbivorous Butcher, a sibling-owned Minneapolis business lauded as America's first meat-free market, is taking on Nestlé, a multinational food corporation, in hopes of either winning the legal right to continue using the phrase or to keep it in the public domain so others in the growing marketplace for plant-based foods can use it, too.

The dispute has been playing out in the U.S. Patent and Trademark Office since June in a process that could take a year or more to resolve if a settlement can't be reached. While the fight for rights to the phrase can be seen as one between a small family business and a corporate giant, it highlights the stakes in a lucrative and rapidly expanding slice of the food industry.

The market for plant-based foods has been growing by double digits in recent years, and now is worth almost $4.5 billion, according to Spins, a market-research firm focused on the natural, organic and specialty products industry. Last year sales of plant-based foods, still a niche player, grew 11% in the past year compared with a 2% jump in retail-food sales.

On one side of the clash is California-based Sweet Earth Foods, a maker of vegan and vegetarian foods that was founded in 2011 by the husband and wife team of Kelly and Brian Swette. Nestlé USA purchased the company in 2017.

Sweet Earth's frozen meals, burritos, breakfast sandwiches and plant-based burgers are sold in more than 10,000 stores, including Whole Foods, Target and Walmart. It now has more than 60 plant-based products, including its new "Awesome Burger" in its portfolio.

On the other is the Herbivorous Butcher, started by Aubry Walch and her brother, Kale, at farmers markets in summer 2014. Sales and interest in their plant-based meats and cheeses took off.

With the help of a Kickstarter campaign, the duo opened a retail storefront in January 2016 across the river from downtown Minneapolis on NE. 1st Avenue. The location serves as the hub of its butchering operation where they have produced an ever-expanding line of small-batch, plant-based replicas of meats, poultry, sausages, jerky and cheeses. Sales of their handcrafted food hit $3 million last year, Aubry Walch said.

Almost from the start the Herbivorous Butcher began using the term "vegan butcher" on their labels and in marketing.

In August 2017, the Herbivorous Butcher applied to trademark the phrase along with several others — including the business' name as well as the phrases "Meat-Free Meats," "Sister Butcher" and "Brother Butcher."

Four months later, they were granted trademarks on all of their applications except for "The Vegan Butcher," which was denied because it was seen as "merely descriptive" under the federal Trademark Act. The Walches chose not to fight the decision, but continued to use the phrase freely, stamping it on paper bags and incorporating it into product labels.

The dispute arose after Nestlé and Sweet Earth sought to trademark the same phrase just six weeks after the Herbivorous Butcher abandoned it based on their "future intent" to use the phrase. In February, a different trademark official approved the application by Nestlé and Sweet Earth.

"For some reason it was denied for us, but not for them," Aubry Walch said. "There are a lot of vegan butcher shops across the United States. We're all a part of the same team. We just don't want a largest company in the world to come in and say we're going to take 'The Vegan Butcher.' It felt suspicious that it was immediately OK for them, but not for us."

The Herbivorous Butcher filed its opposition as part of a process allowed by the Patent and Trademark Office to air such grievances. The office is a division of the U.S. Department of Commerce, and issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.

An attorney handling the trademark case for Sweet Earth referred the Star Tribune's request for an interview to Nestlé U.S. corporate communications. A spokeswoman for Nestlé did not provide a response to questions. Kelly Swette told FoodIngredientsFirst in September that Sweet Earth plans to launch a Vegan Butcher line of plant-based deli meats in spring 2020.

"The question is whether the phrase, which was coined and associated with [the Herbivorous Butcher], whether somebody else can swoop in and take control of that not only from [the Herbivorous Butcher] but from the marketplace in general," said Roseville attorney Kenneth Kunkle, who is handling the case for the Walches.

The case comes before a three-judge administrative panel. Now entering the discovery phase, it could proceed similarly to a court case, including a trial. The siblings said they are determined to see this through.

"They can drag us through court until our great-grandchildren die," Kale Walch said. "It's still a cause worth fighting for."

Jackie Crosby • 612-673-7335 Twitter: @JackieCrosby