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Have You “Got Milk”?

July 27, 2018
Post by Christine Lebron-Dykeman

When you hear the term “Milk”, what comes to mind? Do you automatically think of cow’s milk (or perhaps sheep or goat milk) or do you have a broader definition in mind that covers almond, soy, cashew and other nuts, soybeans, or other plant sources?

In 2013, a class action lawsuit was filed claiming that plant-based products labeled as milk are misleading to consumers as these products violate the FDA standard of identity for milk. The lawsuit was dismissed after the district court found that the FDA had no proscribed name for these plant-based drinks, and the names soymilk, coconut milk etc. accurately identified the basic nature of the drinks while correspondingly distinguishing them from milk derived from dairy cows. In dismissing this case, the court also explained that the plaintiffs’ claim that “a reasonable consumer would view the terms ‘soymilk’ and ‘almond milk,’ disregard the first words in the names, and assume that the beverages come from cows … stretches credulity.”Ang et al v. Whitewave Foods Company et al., Case No. 13-cv-1953.

This issue has not gone away however. Last year, Wisconsin Democratic Senator Tammy Baldwin sponsored the Dairy Pride Act that proposed to forbid the marketing as “dairy” any food not primarily derived from “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more hooved mammals.” Legislative action on this bill did not gain much traction, but the issue arose again last week when FDA Commissioner Scott Gottlieb said that the Trump administration will move to crack down on the use of the term “milk” for non-dairy products.

I raise this issue from a trademark perspective. Considering that plant-based “milk” products have been sold for decades, and there are numerous trademarks incorporating the term MILK currently registered on the United States Patent and Trademark Office Registry, you may wonder how the Gottlieb proposal will affect the rights of these trademark owners. If these trademark owners can no longer use the word “milk” to describe their products, they will be unable to use their federally registered trademarks in commerce and they will lose all the goodwill they have acquired through decades of sales and advertising. Eventually, those marks will be cancelled. This raises the question is it fair for the FDA to enforce a standard it neglected for decades and to viably take away the rights some trademark owners have had since the 1980s. Food for thought.

Christine Lebron-Dykeman is Chair of the Trademark Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Christine directly via email at christine.lebron-dykeman@ipmvs.com.


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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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