• Nestlé Wants Muscle Milk to Change Its Name
  • August 27, 2009
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Nestlé USA is charging the maker of Muscle Milk, a nutritional drink aimed at athletes, with deceptively naming and marketing the brand, because it does not actually contain milk.

    Nestlé, which makes Nesquik, Carnation, and other milk-based beverages and powdered mixes, filed a complaint against CytoSport with the National Advertising Division of the Council of Better Business Bureaus this past spring. CytoSport declined to participate, so in May, the NAD referred the dispute to the Federal Trade Commission and the Food and Drug Administration. In June, Nestlé also filed a petition with the United States Patent and Trademark Office to revoke Muscle Milk’s trademark for being “deceptively misdescriptive.”

    In a statement, Nestlé said, “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.”

    In its own statement, CytoSport said it had never “marketed Muscle Milk products as flavored dairy milk. . . . 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.”

    The maker of Muscle Milk is usually on the other side of trademark battles, having opposed dozens of proposed marks since 2007, often because the product name contains the word “milk” and allegedly violates its trademark. In May, CytoSport sued Defense Nutrition, maker of Warrior Milk, a protein shake powder, for trademark infringement.

    Muscle Milk was first sold as a powdered mix. Sales surged with the introduction in 2004 of a ready-to-drink product that sits in the dairy cases alongside flavored milk. The brand claims it is similar to human milk because it contains “fast burning fats” called medium chain diglycerides. Its ingredients include milk proteins like whey, but it is considered nondairy because the lactose and fat have been removed.

    Why it matters: Although the FDA defines milk as the “lacteal secretion” from cows, the agency has been generous in allowing non-milk-based products to use the term. In 2000, the agency rejected a request by the National Milk Producers Federation that it prevent soy-based beverages from calling themselves “soy milk.” On the other hand, if the FTC decides to investigate Nestlé’s allegations, it will focus on whether the use of the term “milk” in “Muscle Milk” is false and misleading.