This article is written by Anisha Bhandari pursuing B.A LL.B (HONS.) from Institute of Law, Nirma University. The article discusses the famous Nusret Salt Bae case and how it gained so much importance.
Table of Contents
Introduction
Nurset Gökçe, dubbed Salt Bae, is a Turkish chef who runs a chain of steak houses. His practice of preparing and rendering meat has been world-renowned. He has been well known for the way he ‘elegantly’ slices meat and sprinkles butter. His popularity stems from a viral video, ‘Ottoman Steak,’ which was shared on Twitter in January 2017. After that, he was dubbed ‘Salt Bae’ because of the famous manner in which he sprinkles salt by making salt fall on his forearm, then scatter to the beef.
Background
It’s been years — at least — of immense societal upheaval, not least since January 7, 2017, was the day when anyone actually became popular for seasoning beef. As in, the specific act of salting the beef. Since the internet is great at amplifying man’s stupidest impulses and becomes an unstoppable diversion generator, the Turkish steakhouse operator has become the greatest celebrity chef phenomenon in the Western World overnight. Born Nusret Gökçe, the guy who become Salt Bae, has incarnated all that has been good and wrong in the universe in the last 52 weeks. It’s been a few years since Salt Bae was tall. Scroll through the chef’s Instagram posts over the last few years, and you’ll see his style evolve. August 2016 was when he finally discovered his rhythm, shared a picture of himself clapping fresh beef, clapping it on the barbecue, and more. It’s also the first time he’s seen his own unique Blue Steel: an over-elbow salt spray. And it was a video he shared on January 7, 2017 that would transform him into a sexy seasoning king. The video demonstrates his mastered shape: meat-smacking, meat-breaking, meat-slicing, down-to – forearm salting technique. Never mind that every chef in the country will be shot for trying this nonsense in a genuine kitchen, or that Salt Bae himself — sunglasses, snug tee — seems like an extra from John Wick’s European knock-off. The guy is making things work.
In any other time in human history, the act of Salt Bae may have been the most interesting part of a tourist-trap restaurant that people visit when they’re on vacation. Telling friends that they had to see this guy was going to have to fly to Dubai, Abu Dhabi, or Istanbul (all the cities where Salt Bae operates its Nusr-Et steakhouse chain). Then, as everybody has Instagram and Twitter on their screens, people immediately created copycat images, celebrities wear T-shirts with his face, and his iconic gesture found its way into the final-zone-celebration canon.
Salt Bae is not the first celebrity chef whose cooking is solely on the sidelines, but the first whose popularity is based entirely on an incredibly small range of viral gestures. For better or worse (which means worse) “food” as a popular activity is, right now, less about how it tastes and more about how it appears in a frame. Salt Bae’s popularity is not about a nice, or even appropriate, technique — you’re getting salt everywhere, guy! — But he looks funny and intense for all the wrong reasons. In other words, he’s the ideal two-minute video star.
Like the other videos, though, Salt Bae’s popularity has had unexpected roots (his new meat video has tallied up 10 million views). He addresses his virality with a flamboyant self-consciousness that is hard to miss. He was raised in poverty, he began working 13-hour days at 14, and he just tried to operate a restaurant. So now it has unparalleled rates of the greatest currency — commitment. (This is Horatio Alger’s narrative for the Twitter age.) Over the past year, he’s managed to spread to Miami and, hopefully, to New York, to show that a trick may really be a marketing strategy. He always adopted the first law of fame: keep hammering away when you can.
Salt Bae, who doesn’t have a chill, starred on a YouTube channel named Sarah and Melanie Live, cooking with French Montana, a post that also included Diddy. In another video, the rap mogul introduced “my brother Salt Bae,” who was silent as Diddy revealed that the chef would star in the latest Cîroc ad. The predictably over-the-top (and great) ad also contains the DJ Khaled-looking excitement. Salt Bae himself even appeared at Khaled’s birthday party in early December, and he was with Khaled again a few weeks ago, showing Drake how to season meat properly. (Perhaps in the most Drake manoeuvre ever, he flutters it poorly and somehow making it look pretty good.)
The Application
In March 2017, Salt Bae filed for the third-second motion to be a trademark within the European Union. This proposal was made in support of three categories to products and services: Class 25 (of the Nice Classification) covers clothes and accessories. Class 30 contains coffee and chocolate-based foods, beans, noodles and spaghetti, bakery and candy goods, sauces, sweets, chewing gums, ice creams, breakfast products, sugar and, of course, oil. Finally, Class 43 covers food and drink outlets, pubs, cafes and bars, customer storage facilities, and hotels.
Under EU Trade Mark Regulation (EU) 2017/1001, the legitimate requirement for a trademark is that the symbol has gained distinctive character (Article 7(1)(b)). This is, if ten average people saw ten recordings of salting chefs interact, including Salt Bae’s, they will know his iconic sprinkle and his advertising roots. This must, therefore, have gained its characteristic nature in all areas of the European Union (Article 7(2)) such that these ten citizens will represent the entire or at least a large portion of the European Union.
The Registrar at the European Union Intellectual Property Office approved the application for a trademark in Classes 25 and 30 but considered that it lacks the minimum degree of distinctive character needed for Class 43 (food and beverage services). They agreed that, in the minds of the real population, it was “nothing more than a banal and commonplace scene of a butcher cooking meat with a pinch of salt.” The real population is regular customers and practitioners.
Class 25 – Clothing, namely, trousers, jackets, overcoats, coats, skirts, suits, jerseys, waistcoats, shirts, ready-made leather linings (parts of clothing), T-shirts, sweatshirts, dresses, Bermuda shorts, shirts, pajamas, pullovers, jeans, tracksuits, rainwear, beachwear, bathing suits, swimming suits; clothing for sports (for exclusive use for sports), clothing for babies, namely, shirts, pants, coats, dresses; underclothing, namely, boxer shorts, brassieres, briefs, pants; socks; footwear, namely shoes excluding orthopaedic shoes, sandals, waterproof boots, walking boots, booties, sporting shoes, slippers; shoe parts namely heelpieces, insoles for footwear, footwear uppers; headgear, namely caps, skull caps, sports caps, hats, berets; gloves (clothing), stockings, belts (clothing), camisoles, sarongs, scarves, neck scarves, shawls, collars, neckties, ties, suspender belts.
Class 30 – Coffee, cocoa, artificial coffee, vegetal preparations for use as coffee substitutes, cocoa-based beverages, coffee-based beverages; chocolate-based beverages; noodles, macaroni, ravioli; bread, pastry and bakery products, namely, pies, cakes, donuts, muffins, tarts, pizzas, sandwiches, puddings, ready cake mixes, desserts, namely, bakery desserts, chocolate desserts, desserts confectionery and desserts made of flour; honey, royal jelly for human consumption, propolis for human consumption; flavorings, other than essential oils, vanilla flavorings, sauces, tomato sauce, spices; yeast, baking powder; flour for food, semolina, starch for food; granulated sugar, cube sugar, powdered sugar; teas, ice teas; confectionery, chocolates, candies, biscuits, chocolate wafers, crackers; chewing gums not for medical purposes; ice, ice creams, edible fruit ices; salt; processed cereals and cereal products; snacks made of cereals, namely, corn flakes, oatmeal; rice; molasses syrup for food;
Class 43 – Services for providing of food and drink; restaurants, self-service restaurants, cafeterias; cafés, canteen services, cocktail lounges, snack bars, catering, pubs; rental of foodservice equipment used in services providing food and drink; arranging temporary housing accommodations, namely hotels, motels, holiday camps, boarding houses, rental of tents, youth hostel services, room reservation services; reservation of temporary accommodation, rental of banquet and social function facilities for special occasions, namely, wedding receptions, conferences and meetings; providing daycare centres; pet daycare services, pet and animal boarding services.
The appeal
Salt Bae appealed to the Fifth Board of Appeal of the EU to require Class 43 to be applied for. He claimed that the motion gained distinctiveness, and continues to do so, by its appearance on the Internet. He presented evidence of an Internet follow-up and commentary on his videos on Instagram and YouTube.This research was questioned by the Fifth Board because it only demonstrated the use of sprinkles in Turkey, a non-EU nation. While there was press reporting in the United Kingdom and broad social media exposure, the Fifth Board acknowledged that none of this issue applied to the usage of signatures within the EU and that there was no definitive correlation between social media users and the EU. They were not persuaded that the sign had gained distinctive character in all or part of the country, as stated in the KitKat ruling. Salt Bae’s social media evidence simply meant that he had a big follow-up. The Fifth Board considered nothing fanciful, creative, or stunning in the motion mark that would build a connection in the mind of the customer between the sequence of the chef salting the piece of meat and the services requested for.
Distinctiveness
The Fifth Board of Appeal decided that the form selected for salting meat is a common and ordinary procedure in the cooking field and may not signify the root of the specific food service. It can not, however, be registered for facilities belonging to Class 43. However, enrollment will be required with the following activities provided for in that range, i.e.: alcohol activities; renting of foodservice equipment used in food and drink services; provision of temporary accommodation; renting of catering facilities and social event facilities for specific events, such as wedding ceremonies, conventions and gatherings.
Acquired distinctiveness
The claimant also submitted the number of fans on its social media sites and the streaming of its videos on YouTube. The Board believed that it was a common practice to use social media to support the industry. The claimant could not, however, show customer awareness and knowledge of the facilities. There was also little clarification as to how many people personally visited such websites and from which the Member States the interested audience came. The only point that can be inferred from the proof is that the symbol is being used. Nevertheless, this is not enough to indicate that the label has developed a distinguishing quality for the services involved.
Furthermore, the Board struggled with the issue of whether the symbol was originally incapable of fulfilling the role of indication of origin and if that task had now been satisfied as a consequence of the usage of the symbol. The recognition of the general public of the services as emanating from the applicant must be the product of the use of the mark as a trademark which allows it to differentiate the services involved from those of other undertakings. That may be calculated by examining the facts related to the mark and the degree to which the mark is historically common and long-standing. The Board maintained that the proof provided by the claimant in that respect was inadequate. The demand for goods and services in Classes 25, 30, and 43 (partly) was then authorized. However, registration for food services in Class 43 was refused.
Conclusion
The crux of the judgment of the Fifth Board is that however recognizable a sign can be, a trademark can not be licensed unless the customer is aware of the initial good or service with which the claimant deals. It is surprising, considering that more abstract motion markers have been published. For illustration, the two flared segments of Microsoft that connect at the top when a dynamic entity goes up and down. In the Fifth Board’s opinion, the sight of Salt Bae cooking steak is less apt to attract the consumer’s mind to his steak house than that of electronic operating systems.
It should also be remembered that Salt Bae was successful in obtaining the trademark for Classes 25 and 43 in the United States when an application submitted in January 2017 was approved in July 2018 (he did not apply for Class 30). It demonstrates that given the worldwide applicability of the Nice Standard, quality rests to a significant degree on the circumstances of authority, such as the case law and the structure of the tribunal. Nonetheless, it will seem that Salt Bae will not refer the case to the General Court of the EU.
References
https://ipharbour.com/blog/ip/salt-baes-sprinkle-given-eu-trade-mark-protection/
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017R1001
https://robbreport.com/food-drink/dining/salt-bae-steakhouse-reviews-bad-eg18-2775237/
https://www.thesun.co.uk/news/5353065/salt-bae-open-new-york-steakhouse/
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