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Monday, November 24, 2014

Dairy Farmers of Canada opposition to "Monster Milk" trade-mark rejected by Registrar

In July of this year, the Registrar of Trade-Marks in Canada dismissed oppositions filed by the Dairy Farmers of Canada against the proposed registration of trade-marks for "Monster Milk" and "Monster Mlk".  The registrations were requested by Cytosport, Inc. for a product described as: "Dietary and nutritional supplements for use in athletic training, namely for improving body strength and building muscle, excluding ready to drink beverages."

Dairy Farmers of Canada argued that the proposed trade-marks "whether depicted, written or sounded, are deceptively misdescriptive in the English language of the character or quality of the [products] in association with which they are proposed to be used.  Indeed, when depicted, written or sounded, the average consumer is likely to believe that the [products] are made of 'real milk' or contain 'real milk'."

The applicant, Cytosport, Inc., submitted that the term "milk" has a number of definitions that make it "clear that the work 'milk' could mean many different things and would not, in the mind of an average consumer, necessarily refer to cow's milk." 

The Registrar concluded that the trade-marks were registrable: "The work MILK (or MLK) is only one word in a composite mark.  The combination of the word MONSTER with the word MILK (or MLK) is unusual.  Aside from the word MILK (or MLK) that may suggest the character of the dietary and nutritional supplements, there remains the distinctive portion MONSTER.  The word MILK (or MLK) is no more dominant than the word MONSTER.  The combination of MONSTER and MILK (or MLK) does not create a trade-mark that can be viewed as a whole as descriptive of the character or quality of the dietary and nutritional supplements.  As the first portion of the test is not met, the [trade-marks] cannot be found misdescriptive."

Read the decision at: Dairy Farmers of Canada v Cytosport.