Thursday, September 3, 2009

California Hates Breasts

You've seen the "Got Milk?" ads all over the place. Did you know they are the product of the State of California?
Specifically the California Department of Food and Agriculture.

You've probably even seen some spoof of them: Got Beer? Got Tunes? etc.
Well if you haven't there's a Texas company selling several spoof stickers on the "Got ____" motif. (these stickers are designed for vehicle windshields)
But this time they've gone too far! - according to the state of California.

The California Department of Food and Agriculture has filed a lawsuit against the Texas sticker company for violating its trademark. Funny, they didn't think "Got Beer?" was similar enough to cause confusion (or to defame) but this one they do.
What does the nefarious sticker say?
Got Breastmilk?

I guess because it starts with "Got" and ends with "milk?" it's confusingly similar.

Personally I think it's ridiculous. Obviously the California Department of Food and Agriculture is not trying to promote or encourage the sale of breast milk. How could anyone think "Got Breastmilk?" has anything to do with the California Department of Food and Agriculture I couldn't guess.
But apparently I'm alone. The USPTO actually issued a denial to someone trying to register the t-shirt logo "GOT BREASTMILK, I DO". The reason for denial?

Applicant had appropriated the GOT MILK slogan "for use with a service that is closely related to the goods sold by registrant and the type of promotional services offered by applicant as well. These similarities in goods and services, make it highly likely that those familiar with applicant’s goods and services, will conclude that registrant is now putting its slogan on t-shirts so as to promote milk."

Exactly what goods and services would a woman wearing this t-shirt be selling that is so close to what California is promoting?
Unfortunately the applicant did not fight to continue the application in the PTO and the application was deemed abandoned. I think she would have won.

Now oddly enough, there is something I find meritorious in the suit.
For one thing, it hurts the "Got Milk?" mark because after seeing this, I'm less inclined to buy milk. But beyond that, there is possible Dilution of a famous mark.

I don't think there's any arguing that "Got Milk?" is not famous.
Dilution is basically using a mark (or an extremely similar mark) on some OTHER product than what the mark holder is selling. The mark is diluted because it loses its strength for selling a product. People may start associating the mark with something else and the mark/product association in the minds of consumers won't be as sudden and as strong.
So, I do see the "Got Breastmilk" sticker as possibly making the "Got Milk?" mark less associated with the California Milk Processor Board. But the same I think would be true for "Got Beer?".
I guess they just thought this was a closer link and therefore a better fight to pick.

Two final things about the Texas Sticker company.
1 - what's with them and newborn babies? They have a sticker that says "MECONIUM HAPPENS".
2 - apparently just filing the suit worked. The "Got Breastmilk?" sticker is no longer available at their website.

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