Got Milk? For Sports Drink Maker, Nestlé Says No
CYTOSPORT, which makes Muscle Milk, a fortified drink popular with athletes, is getting a workout itself these days, as Nestlé USA claims the product is deceptively named and marketed because it does not actually contain milk
Nestlé, which makes milk-based beverages and powdered mixes under brands like Nesquik and Carnation, filed a complaint with the National Advertising Division of the Council of Better Business Bureaus. Because CytoSport declined to participate, the N.A.D. in May referred the matter to the Federal Trade Commission and the Food and Drug Administration.
On June 9, Nestlé USA filed a petition with the United States Patent and Trademark Office to revoke Muscle Milk’s trademark for being “deceptively misdescriptive.” In response to questions from The New York Times, representatives for both Nestlé and CytoSport issued statements.
“Nestlé USA strongly believes in the nutritional benefits of milk,” the company stated. “Consumers looking at Muscle Milk, marketed as a ‘Nutritional Shake,’ are likely to be misled into believing they are purchasing a flavored or supplemented milk product, when, in fact, they are purchasing a water-based product that contains no milk.”
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.”
As the world’s largest food company, with more than $100 billion in sales in 2008, the Switzerland-based Nestlé is hardly picking on someone its own size when it challenges CytoSport, which has about $200 million in annual revenue, according to a spokesperson. But the maker of Muscle Milk is no stranger to trademark battles, and often instigates them. Since 2007, it has opposed dozens of proposed trademarks, often because the names of products contain the word “milk” and allegedly violate its trademark.
Marketed primarily to athletes, Muscle Milk’s advertising has featured Shaquille O’Neal of the N.B.A. among other pro stars. (Nesquik has promoted itself as a sports drink too: after a 2006 study partly funded by the dairy industry found that chocolate milk helped in replenishing the body after workouts, Nesquik sponsored marathons and hired a runner dressed as the brand’s bunny mascot to compete in races.)
First available only as a powder mix, Muscle Milk has grown significantly since 2004, when it introduced a ready-to-drink version that shares grocer’s dairy cases with flavored milk. Called a “breakout success” by the trade magazine Beverage World, CytoSport was recently named “Small Business of the Year” by the Beverage Marketing Corporation, a research and consulting firm.
The brand claims to resemble mother’s milk because it contains “fast burning fats” called medium chain diglycerides, while also implying that it tastes as good as dairy, with flavors like “vanilla crème” and “cookies ’n crème.”
While the beverage contains proteins derived from milk — like whey — it is considered nondairy because the lactose and fat have been filtered from those proteins. Muscle Milk markets itself as lactose-free, but is required by the F.D.A. to say on its label that it contains ingredients “derived from milk.”
Although its regulations define milk as the “lacteal secretion” from cows, the F.D.A. has taken a broad view about what can be labeled milk. The National Milk Producers Federation asked the agency in 2000 to prevent soy-based beverages from calling themselves “soy milk,” but the F.D.A. was unswayed.
While Muscle Milk asserts its right to call itself milk, it has blocked others from doing so, opposing trademark applications for products including Mega Milk, Active Milk Shake Plus and Monster Milk.
In May, CytoSport filed a trademark infringement suit in federal court against Defense Nutrition, owned by Ori Hofmekler, author of three nutrition books including “The Warrior Diet,” and whose line of supplements includes Warrior Milk, a protein shake powder.
“This is a company that is using Mussolini-like techniques to wipe out competition,” Mr. Hofmekler, whose products are available only online, said of the lawsuit. “They can harass me with lawyer fees but they cannot wipe me out.”
CytoSport has sued when “competitors have looked for opportunities to unfairly benefit from Muscle Milk’s recognition,” the company said in a statement. “In order to protect its brand and to prevent opportunities for consumer confusion, CytoSport has been compelled to stop these types of infringements.”
Michelle Herrington had never heard of Muscle Milk when, in 2005, she started — before first securing a trademark — a line of soy-based shakes for pregnant and nursing women called Angel Milk. When sued for trademark infringement in federal court by CytoSport, which also opposed her trademark application with the trademark office, Ms. Herrington was surprised because her products were not even “in the same universe” as CytoSport’s athlete-oriented Muscle Milk, she said in a telephone interview from her home in San Pedro, Calif.
After spending $12,000 to defend her company, the trademark office ruled in CytoSport’s favor. She estimated it would cost as much as $50,000 more in legal fees to appeal that decision and fight CytoSport’s federal suit, which she was considering when, in January, Angel Milk was dropped by its biggest retail account, Babies “R” Us.
In February, Ms. Herrington decided to fold the company.
“Muscle Milk wasn’t the only factor, but they were like the nail in the coffin,” Ms. Herrington said. “I was just a mom-and-pop company and trying to feed my family.”
Now that Nestlé is challenging CytoSport’s trademark, “they’re having to go through the same headache that they put me through,” Ms. Herrington said. “I hope Muscle Milk gets exactly what they deserve — that would be poetic justice.”
http://www.nytimes.com/2009/07/27/business/media/27adco.html?_r=2
