Got Milk? Nestlé Sues Muscle Milk For False Advertising

By Mark Skoultchi

July 28, 2009

The NYT reported yesterday that Nestlé is suing CytoSport over the use of the term “milk” in its brand name. CytoSport markets “Muscle Milk,” a non-dairy protein shake engineered to resemble human breast milk. (Hey, I don’t make the stuff, I just write about it. Now that I know though, I can’t say I’ll be running to my local GNC to buy some.)

Several things I find funny about this. For starters, this suit provides yet another example of how descriptive names can get you in trouble. (For more info on name styles, download our piece on Company Names vs. Product Names.) Not only can they pigeon hole you over time, but they can inspire your competitors to force you to stay true to your language. I can guess at Nestlé’s main objectives here:

1) Mess with Muscle Milk, maybe get them to change the product name (a potentially expensive exercise that can lead to market share reduction).

2) Open Pandora’s Box on the ingredients of this product in the hope that some customers will be less interested to purchase it when they see it has no milk and/or when they read it is modeled after breast milk. (I have nothing against breastfeeding babies, but the image of a big muscle-head chugging a glass of breast milk makes me chuckle and cringe all at the same time.)

3) If they lose, they still win. Now they would be able to use “milk” as a brand name or a descriptive name on some of their non-dairy products.

I’m no trademark attorney, but this whole things seems pretty trumped up to me. With so many products like “soy milk” and “milk of magnesia” already well established in the market, I’m thinking Nestlé is in for quite a battle. Seems like a pretty obvious defense for the CytoSport folks.

Then again, I’d be more than happy to help create the new name for this product. A few quick ideas off the top of my head:

Muscle Moo Juice

Muscle Butter (just churn it a few more times …)

Chug-a-Muscle

Chugable Muscle

I better stop before someone gets the wrong idea.

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