Nutritional guidelines traditionally have not been adjudicated. But a trademark infringement complaint filed by the National Cancer Institute with the U.S. Patent and Trademark Office (PTO) against Dairy Management Inc. (DMI) could set a precedent.
In its objection, filed in early April, NCI alleges that consumers may become confused about optimal health practices because DMIs adoption and use of the slogan "3-A-Day" for a campaign encouraging regular dairy-product consumption directly competes with NCIs "5 A Day," which urges consumers to eat five or more servings of fruits and vegetables daily.
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Like the 5 A Day campaign, the 3-A-Day program is intended to improve Americans health. Citing the recommendation found in the Food Guide Pyramid developed by the U.S. Department of Agriculture, DMI believes there is a chronic calcium deficiency in the U.S. population, and it reports that most Americans are eating only half the recommended two to three servings of dairy products each day. The solution, according to DMI, is three daily servings of milk, cheese, or yogurt, which will provide such essential nutrients as potassium, phosphorus, protein, vitamins D, A, and B12, riboflavin, niacin, and niacin equivalents.
Five A Day program director Lorelei DiSogra, Ed.D., R.D., declined to comment on the PTO opposition, referring instead to an April press release that briefly described the complaint. According to language in the release, "The NCI has spoken with the Dairy Council about the issue and is committed to working with its 5 A Day program partners and with Dairy Management Inc. to resolve the current situation and ensure that consumers arent confused by different recommendations about what to eat or drink."
Dairy Management spokesman Greg Miller, Ph.D., senior vice president for nutrition and scientific affairs for the National Dairy Council, reported that DMI was "surprised" by the filing of the complaint. Although he said that both parties have since attempted to discuss the matter, bad weather and scheduling conflicts have precluded in-person meetings. As of early June, there had been only one telephone conference call, with no resolution of the dispute.
"We didnt think we were doing anything at all that would confuse consumers," Miller said. "We use good, sound science to promote the message were delivering. Dairy food is the safest family of food products available. We think theres a great opportunity for us to work together."
According to NCI, its 5 A Day for Better Health program is the worlds largest public/private partnership for nutrition education and one of the most recognized. Other 5 A Day participants include the American Cancer Society, the Centers for Disease Control and Prevention, the U.S. Department of Agriculture, United Fresh Fruit and Vegetable Association, the Produce Marketing Association, and the National Alliance for Nutrition and Activity.
DMIs 3-A-Day marketing and consumer education campaign is managed by the American Dairy Association and National Dairy Council, with the monetary support of the dairy industry. The 3-A-Day campaign boasts its own lineup of endorsersthe American Academy of Family Physicians, the American Academy of Pediatrics, the American Dietetic Association, and the National Medical Association.
Dairy Management has proceeded with plans to proceed with its own trademark application, which is still pending before PTO examiners. Miller said that although his organization was aware of the NCI mark, DMI nevertheless adopted the 3-A-Day slogan because "we think it will reduce confusion among consumers about what and how to eat."
"Were about the same thing as NCI: to improve American health and dietary intake," he said. "We should be able to find common ground to work together. We are hoping to continue talking to them."
Absent agreement between NCI and DMI, the matter will come before the PTOs Trademark Trial and Appeal Board. As with any legal proceeding, according to Sharon Marsh, J.D., PTO administrator for trademark examination policy and procedure, accepted practices will be observed. Theres a discovery period where current evidence is made available to all parties. Both the complainant and the responder submit legal briefs, and there are oral hearings. Three administrative law judges render the final decision, basing their decision on the PTO Trademark Manual of Examining Procedure.
"Theres no black-and-white test," Marsh said. "The marks dont have to be identical. The services dont have to be identical. The issue is whether the public will be confused as to the source of the products or services."
There are no legal or monetary penalties should the judges decide against DMI and in NCIs favor; simply the exclusive right to continue exercise of the trademark. A ruling in the case could come at any time, or not for months, maybe even years. "It can be a lengthy and complicated process," Marsh said. "We cant predict what will happen. Its impossible to know how long this will last."
Regardless of the outcome, both DMI and NCI show no signs of easing the promotion of their respective plans. The 3-A-Day logo will continue to appear on qualifying packages of milk, cheese, and yogurt, according to DMI. The association has also begun to tie their campaign to the DASH (Dietary Approaches to Stop Hypertension) diet, which includes three servings of low-fat dairy products, and has been shown to lower blood pressure and to have favorable effects on other risk factors for cardiovascular disease.
Since 5 A Day began in 1991, NCI reported that the percentage of Americans who know they should eat five or more servings of fruits and vegetables a day has more than quadrupled, from 8% to 36%. NCI cites survey data showing that from 1989 to 1991, adults ate an average of 3.9 servings per day of fruits and vegetables. Between 1994 and 1996, that number increased to approximately 4.6 servings per day, less than a half a serving short of the recommended minimum of five.
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