The Hempany is on trial

The start-up is arguing with the competition authority about whether a hemp drink can resemble milk. But the signs are pointing to defeat.

Green Hemi T-shirt, arms crossed and mouths taped shut with a strip of duct tape. The two founders of The Hempany want to show that they are serious: in a mini-video on their start-up's website, they all tear the tape off their mouths and look sternly into the camera. "We won't be shut up..." it says next to it "... and are fighting back against the milk lobby's lawsuit."

The four are still campaigning for solidarity on their website on Friday morning. "Support us now" they write there - and anyone who wants to can also sign up for the Stuttgart-based start-up's newsletter. The Hempany is currently in court, the Wettbewerbszentrale has filed a lawsuit, complaining that the online marketing of the hemp drink gives the impression that it is a dairy product. For The Hempany, this is a David versus Goliath battle. The start-up smells the dairy industry behind the lawsuit and is now fighting for the big picture in its view.

Thursday was the only day of oral proceedings at Stuttgart Regional Court and it was already clear that things are not looking good for The Hempany. Nothing is final yet, the verdict is not due to be announced until February 10 and the court may change its mind again before then. But CEO Dave Tijok and co-founder Laura Rothgang are already somewhat disillusioned as they sit down in front of the camera on their laptops after the hearing. "We were quite surprised," admits Tijok at the same time. "The judge seems to have sided more with the Wettbewerbszentrale."

At the heart of the legal dispute is the way in which The Hempany advertises its drink on its website. "hemi = hemp milck" is written right at the beginning, followed by the addition: "We milk hemp seeds instead of cows." Another tab simply reads "Milck". In the opinion of the Wettbewerbszentrale, "Milck" in particular is far too easy to confuse with milk. The Hempany's advertising for its hemp seed drink would therefore be consumer deception.

The rules in the European Union are clear: only products of animal origin may be called "milk". Plant-based products, such as those made from soy, oats or hemp, may not be advertised as "milk". The European Court of Justice (ECJ) only confirmed this again in 2017. The same rule also applies to butter, cheese and yogurt, for example.

"In our opinion, the absolute protection of designations for dairy products may not be circumvented by changing a single letter," says Tudor Vlah from the Wettbewerbszentrale. As a registered association, the Wettbewerbszentrale wants to ensure that all companies have to adhere to the same rules. Anyone who feels that they have been discriminated against by other companies in the marketing battle can contact the center. They will examine the complaint and then send out a request to cease and desist. Anyone who - like The Hempany - fails to comply will end up in court.

Exactly who has complained to the Wettbewerbszentrale remains a secret. According to Vlah, the organization never discloses who has contacted it. It could be consumers, other companies or even authorities. Vlah can look back on Thursday's hearing with satisfaction, even though what was said is still non-binding. "In the hearing, the court followed the opinion of the Wettbewerbszentrale and saw the term 'Milck' as misleading the consumer," he says.

At The Hempany, on the other hand, they see "Milck" as a term of art. CEO Dave Tijok points in particular to the combination of the word with the added sentence "We milk hemp seeds instead of cows". He is convinced that consumers can therefore easily distinguish between the two products. "The addition, which is always mentioned in context, makes this very clear and we don't believe it is misleading for consumers," he says.

There would have been an easy way for The Hempany to avoid the legal dispute. It would have been one that would probably also have been cheaper - especially if the start-up lost and then not only had to pay its lawyer, but also cover the legal costs: The Hempany could have responded to the injunction request and removed the offending terms from its website. On the packaging of the hemp drink, which can be bought at Rossmann and Alnatura, among others, "Milck" is only written very small, almost hidden - perhaps also because the start-up knows exactly that it is not so easy with the terms and competition law. "But we're all about the principle," says co-founder Laura Rothgang. "If we can win the case, it will be a step in the right direction for the industry and other manufacturers of plant-based drinks will be able to market their products closer to the actual reality of consumers - as a fully-fledged alternative."