Got confusion?

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Among the little known stories circulating recently, we learn from The Anchorage Daily News that the California Milk Processor Board, representing eleven dairy processors that market milk, is planning to bring trademark infringement charges against a batik artist in Talkeetna, Alaska. A few years ago, the artist, Barbara Holmes, whose company is Mountntop Designs & Baby Bugs Clothing, produced and advertised the slogan, "Got Breastmilk?" on tee-shirts and one-piece baby clothing called "onesies." CMPB's Sacramento law firm sent her one of those typical cease-and-desist warning letters to Holmes, telling her that her slogan will cause confusion with their own widely publicized and trademarked slogan, "Got Milk?" And she'd better stop doing this now, before they sue her. It's not like Holmes had made a lot of money selling her tee-shirts and onesies. She sold only 16 of them before she gave up on the idea some time ago and turned her attention to other projects. But never mind; her little operation is alleged to be endangering the commercial territory of the huge milk association. Although the case has not yet moved beyond the warning letter stage (and mercifully may never do so), what sort of claim could CMPB hope to make if it formally charges that "Got Breastmilk?" infringes its own trademark and will confuse consumers about the quality, nature, and origin of the product? The three most common questions in trademark disputes are: 

  • Do the two names sound alike?
  • Do the two names mean the same thing?
  • Do the two names look alike?

 In recent years some trademark cases also charge dilution, meaning that the reputation of the original mark has been diluted, tainted, blurred, or eroded by a second user, thereby causing consumers to be confused about the quality and origin of the products.

Do the two phrases really sound alike? CMPB's lawyers say they do:

The phrases 'got breastmilk' and 'got milk?' are similar except for the addition of the word 'breast.' This difference is not enough to eliminate the likelihood that consumers will be confused about the origin of the products.

Hmm. Got Milk? has 7 phonetic sounds; Got Breastmilk? has 12. This means that 42% of the sounds are different. I haven't done a distinctive feature analysis on the two phrases but it would likely show an even greater difference, based on the additional phonetic features that "breast" would add.

Do the two phrases mean the same thing? Perhaps the best answer to this comes from the words of Holmes herself: 

They say I'm going to confuse milk consumers. How can you get confused between a boob and a bottle of milk from the store? They're two different kind of jugs.

Do the two phrases look alike? Although graphemics (letter shapes, types and sizes as well as punctuation) might play a role here, this question usually concerns such semiotic issues as trade dress, the colors used, and packaging styles. I haven't seen the tee-shirts and onesies, but it would seem reasonable that the context of baby clothes presents a very different packaging issue from bottles of milk. 

If the milk producers group should happen to claim that the shirts and onesies with Got Breastmilk? on them dilutes their own mark for bottled milk, their lawyers will have to face the hurdle imposed on the plaintiff in such cases. CMPB will need to be able to offer proof that that phrase, Got Breastmilk? has eaten into, eroded, tainted, or blurred their current or future commercial gain. They'll also need to show that a phrase relating to breastmilk will somehow dilute a phrase relating to cow's milk. 


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