Tuesday, December 18, 2007

Tuesday Talking Points Memo: Spilled Milk

'Got Pus? Milk Does' says a new anti-milk marketing slogan and campaign from PETA: Cease and desist or face a lawsuit is the reply from the California Milk Processor's Board

An interesting war of words and exchange of letters (with threats of a lawsuit) has broken out between the California Milk Processors Board, the non-profit group that represents the state's milk processors, and PETA (People for the Ethical Treatment of Animals), the nonprofit animal rights organization.

PETA, which advocates a dairy-free lifestyle, recently launched an advertising and PR campaign featuring the slogan, 'Got Pus? Milk Does.' The group has run print ads and put the slogan on T-shirts, coffee mugs and other merchandise as a way to draw consumer attention to what it says are "dangerous levels of somatic cells--pus--in most if not all of the milk sold in the U.S.

Pus has the potential to get into milk when a cow has an udder infection called mastitis. PETA says it occurs regularly and thus the pus is in milk. The dairy board, government officials and most scientists and large animal Veterinarians disagree.

The California Milk Processors Board, which owns the trademark 'Got Milk,' is demanding PETA stop using the 'Got Pus? Milk Does' slogan immediately or face a copyright infringement lawsuit.

PETA recently gave the Associated Press a letter sent to the group by the milk board which demands the organization immediately cease the campaign by December 15 (3 days ago) and turn over all the merchandise with the tag line on it, along with any profits made from the sales of the items.
As of today, PETA hasn't met the milk group's demands; it hasn't ceased the campaign or turned over any logo-embossed goods or monies from their sales. In fact, PETA's lawyers have replied to the California Milk Processor Board with it's own letter, which says the trademark infringement charge is "entirely without merit."

In the letter to the milk board's lawyers, PETA's lawyers write, "Your client cannot seriously contend that an appreciable number of consumers who see a T-shirt bearing the 'Got Pus? Milk Does' slogan would be confused into thinking your client is the source of the T-shirt, attempting to sell milk by letting the public know that when they drink milk they also are consuming pus."

We aren't sure that response addresses the actual thrust of the milk processor' board's letter and trademark infringement claim. The ''Got Pus? Milk Does' tag line is clearly a rip-off of the "Got Milk" slogan. It's designed to play off of the popular media slogan. However, whether it meets the legal test of trademark infringement will be up to the courts to determine if a lawsuit is indeed filed, as it looks like will be the case.

If a lawsuit is filed, it won't be the first time a California milk and dairy trade group and PETA have faced each other in a courtroom. A few years ago PETA sued the California Milk Producers' Advisory Board, a separate but sister organization to the processor's board. The producer's group represents California's dairy farmers.

PETA filed suit against the dairy farmers' group over their popular advertisements which depict happy and contented cows grazing in a California pasture. 'Happy Cows Produce Great Cheese' is the slogan in these television and print ads. PETA's lawsuit argued the "Happy Cow" ads were false and misleading, saying the cows are neither happy, content or treated well. A California state court dismissed the case in 2003, and the state's Supreme Court denied PETA's motion to review it.

This time the shoe is on the other foot (or perhaps hoof), as it's a milk board that's threatened to file suit against PETA. PETA also isn't the first group or organization who've created a knock-off based on the 'Got Milk' marketing slogan. Most of these slogans were humorous and didn't strike at the very nature of the product and it's integrity like the PETA campaign does. As such, the milk board ignored them, and even in some cases relished the free publicity. But there's no ignoring or looking away this time for the milk group

It looks like the two groups are headed to court unless something can be worked out, which doesn't look likely at this point. The California Milk Processor Board hasn't filed a lawsuit as of today.

The milk processors' say there's absolutely no truth to PETA's claim regarding pus being in milk, especially milk produced and processed in California. Further, they say PETA is infringing on the trademark--"Got Milk"--which they own.

"Milk is one of the most regulated, tested and therefore safest products that consumers can buy," Steve James, the milk board's executive director said in a recent statement about the issue. "Pasteurization has been required for almost a century in order to remove harmful organisms and bacteria so it's safe for human biology."

Both sides have indicated they have experts lined up who can prove their respective points. First, if the case does go to trail it will be interesting to review the scientific evidence regarding pus in milk. Is it there? At what levels? If so what is the scientific consensus in terms of it's potential harm--and at what levels? If it's not there, the case will be moot. If pus is present in milk based on scientific findings, then there will be a basis for PETA's claims and campaign.

Second, the first amendment aspects of the case could be interesting. Milk is a generic term. As such, don't groups like PETA have a right to use it in a social marketing campaign? On the other hand, the U.S. Supreme Court has made clear that commercial speech is protected speech, and the milk board does have a trademark on the 'Got Milk' slogan. One could argue PETA's take-off on that popular slogan is just that--designed specifically to tap into the commercial popularity of the 'Got Milk' branding in order to create awareness and commercial gain in the form of getting people to drink less or no milk at all.

We're a bit surprised that the milk processors board hasn't rebutted PETA's campaign more solidly from a scientific standpoint--supporting there position that milk is pus-free and safe. Further, on their website the board makes little or no mention of the issue and their positioning on it.

By the same token, we haven't heard much about the PETA campaign. If we didn't search out such information as industry analysts and writers, we doubt if we would even be aware of the issue. Have you seen many 'Got Pus' T-shirts or coffee mugs around? We haven't. Additionally, PETA isn't showcasing the campaign prominantly on its website at present.

The best way to solve food safety issues like this is through science. Fact-based inquiry. Once the closest approximation of the truth is determined through the use of the scientific method, courts of law can then be used to determine potential remedies.

Of course, even if milk has pus as PETA argues, the milk board can still argue the group's use of the 'Got Pus' slogan is an infringement on their trademark. However, the issue is bigger than that--it's about the purity, safety and integrity of the product. In the final analysis, what's best for the consumer--safety, health and other variables--is what's most important for all concerned. It might take a court to sort that out.

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