Legal Commentary

Cal. Milk Board wants TM for “got breastmilk?”

By David A. Giacalone

&/or

A comment this evening by Jill Jalen goes a long way to solve the mystery raised in our post “got jugs?” (July 30, 2008).  Experts on breasts, babies, and trademark law — along with those interested in jugs and lawyer antics — all wondered why the California Milk Processor Board wanted Alaskan artist and breastfeeding advocate Barbara Holmes to stop using the slogan “got breastmilk?” on her onesies and infant t-shirts.  They said Holmes’ slogan infringed on their “got milk?” trademark, but that seemed unlikely.  Jill’s Comment brings things into better focus:  On October 6, 2008, the Board’s lawyers, Knox Lemmon Anapolsky LLP, filed a trademark application with the PTO for a mark that:

“consists of the wording ‘got breastmilk?’ in all lower case letters in Phenix American font.”

According to the TARR status report for the as-yet-unassigned claim with the Serial Number 77586468, the Board intends to use the “got breastmilk?” mark with the following products:

• baby blankets, children’s blankets and burp cloths
• breast pads and breast-nursing pads
• baby bottles, cups adapted for feeding babies and children, pacifiers, sippy cups, breast milk storage bottles, breast pumps and breast shields
• baby backpacks and baby carriers worn on the body
• clothing, namely, t-shirts, shirts, short-sleeved shirts, long-sleeved shirts, sweat shirts, infant bodysuits, pants, infant sleepers, hats, caps, cloth bibs, socks and infant onesies

When the story broke, a lot of folks ridiculed Knox Lemmon for making such a frivolous trademark dilution claim — arguing that there could be no confusion between the hand-written “got breastmilk?” logo used by Holmes and the well-known wording and font of ?got milk?^®.”  See ??Got milk? lawyers huff at Talkeetna artist?s parody? (Anchorage Daily News, July 25, 2008); via Overlawyered.com; and see ?Legal Blog Watch;? Language Log; and Alaska Backwoods Lawyer.

Even this weblog said the “attack on Barbara Holmes and her onesies is silly as a matter of law and one more example that we?ve become an ‘overlawyered’ nation.”  However, we always caution others who mock the conduct of otherwise competent lawyers that we might not have all the pertinent facts, and that more information might indeed show us that dollars were at stake and the action was defensible.

That seems to be the case here - - the Milk Board apparently wanted to protect more than its “got milk?” franchise.  Nonetheless, if Stephen Byers and the other lawyers at Know Lemmon had trouble with Holmes’ logo, they should be even more worried about this baby onesie product from The Mom’s Boutique in Oshkosh, Wisconsin, which appears to use the same font as the mark in the new application, as well as the original “got milk?” campaign:

.. baby onesie and t-shirt ..

Maybe trademark experts will help us determine whether the prior uses by the breastmilk advocates are a bar to the Milk Board’s application for a mark on “got breastmilk?”  Naturally, if this new product line is projected to be a cash cow, CMPB might be willing to use a little monetary suasion to obtain the rights to “got breastmilk?”.

dairy country?
in the pharmacy window
a breast pump display

? ed markowski - Bear Creek Haiku

silence
the baby finds
the breast

?????. by Yu Chang from Upstate Dim Sum

Full post as published by f/k/a . . . on December 01, 2008 (boomark / email).