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NYT on Muscle Milk and others

By Rebecca Tushnet

This story is chock full of great advertising and trademark law puzzles: when is milk not milk? If "soy milk" isn't deceptive, can "muscle milk" be? If Muscle Milk is a legitimate trademark, can the company oppose other trademarks using "Milk"?

Notably, Nestle brought a complaint against Muscle Milk using NAD and is petitioning to cancel the trademark, but didn't file a Lanham Act suit. My best guess: worried about standing, even though Muscle Milk is now available in the refrigerated section near the chocolate milk.

Weirdest paragraph:

CytoSport countered that it had never ?marketed Muscle Milk products as flavored dairy milk,? adding that, rather, it is modeled after another milk entirely. ?CytoSport?s marketing and advertising materials have made it clear ? over the more than 10 years that Muscle Milk has been sold ? that Muscle Milk products are high-protein nutrition products designed after one of nature?s most balanced foods: human mother?s milk.?

I understand the differences between human and cow milk--in this culture, discussion of same is very hard for mothers to avoid--and yet "another milk entirely" seems off to me.

So, what do reasonable consumers think "milk" is in this context? What's the relevance of the FDA-required label that the product contains ingredients derived from milk, even though it's not considered dairy because it's only got whey in it?

Full post as published by 43(B)log on July 29, 2009 (boomark / email).