The Hempany is on trial

The start-up is in dispute with the Wettbewerbszentrale whether a hemp drink is allowed to resemble milk. But the signs point to defeat.

Green Hemi T-shirt, arms crossed and mouths each taped shut with a strip of duct tape. The two female founders and the two male founders of The Hempany want to show they mean business: they all rip the tape off their mouths in a mini-video on their startup's website and stare sternly into the camera. "We don't let anyone tell us to shut up..." it says next to it "... and we're fighting back against the dairy lobby's lawsuit."

On their page, the four are still canvassing for solidarity on Friday morning. "Support us now" they write there - and whoever wants to can also sign up for the newsletter of the Stuttgart-based start-up right away. Because The Hempany is currently in court, the Wettbewerbszentrale has sued, bothered by the online marketing of the hemp drink, which conveys too much the impression that it is a dairy product. For The Hempany, this is a David versus Goliath battle. The startup smells the dairy industry behind the lawsuit and is now fighting for the big picture, in its view.

On Thursday was the only oral hearing day in the Regional Court of Stuttgart and it already became clear: It does not look good for The Hempany in the matter. Nothing is final yet, the verdict will be announced on February 10 and the court can change its mind until then. But CEO Dave Tijok and co-founder Laura Rothgang are already somewhat disillusioned as they sit down in front of their laptop cameras following the hearing. "We were pretty surprised," Tijok admits at the same time. "The judge seems to rather side with the Wettbewerbszentrale."

At the heart of the dispute is the way The Hempany advertises its drink on its website. "hemi = hemp milck," it says at the very beginning, for instance, with the addition below that, "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 deceiving consumers.

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

"In our opinion, the absolute designation protection 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 must adhere to the same rules. Who feels disadvantaged in the marketing fight by other companies against the rules, can turn to the center. The head office examines the complaint and then sends out a request to cease and desist. Those who do not comply - like The Hempany - will end up in court.

Who exactly has complained to the Wettbewerbszentrale remains 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, although what was said is still non-binding. "At the hearing, the court followed the view of the Wettbewerbszentrale and saw the term 'Milck' as misleading the consumer," he says.

At The Hempany, however, they see "milck" as a term of art. CEO Dave Tijok points primarily to the combination of the word with the attached phrase "We milk hemp seeds instead of cows." He is convinced that consumers could therefore easily distinguish the two products from each other. "Especially the addition that is always mentioned in context makes that very clear, we don't think that's consumer deception," he says.

There would have been an easy way for The Hempany to avoid the lawsuit. It would have been one that would probably have been cheaper, too - even more so if the startup loses and then has to not only pay its lawyer, but also pay the legal costs: The Hempany could have responded to the cease-and-desist demand and taken the offending terms off its website. On the packaging of the hemp drink, which can be bought at Rossmann and Alnatura, among others, "Milck" is only very small on it, almost hidden - perhaps also because the start-up knows exactly that this is not so simple with the terminology and competition law. "We're all about principle, though," says co-founder Laura Rothgang. "If we can win the lawsuit, it's a step in the right direction for the industry, and other manufacturers of plant-based beverages can also market their products closer to the actual reality of consumers - as a full-fledged alternative."