Alleging that use of the term “milk” for dietary supplement products that contain no milk from a cow constitutes false advertising under the Lanham Act, Global Beverage Enterprises Inc. has filed a complaint against the company that makes Muscle Milk®, seeking the cancellation of its trademark registrations. Global Beverage Enters. Inc. v. Cytosport, Inc., No. 14-60950 (U.S. Dist. Ct., S.D. Fla., filed April 23, 2014).

According to the complaint, the companies’ competing products “are placed in the same beverage cooler at The Fresh Market stores nationwide.” The plaintiff contends that the defendant’s use of the word “milk” on its products “deceives consumers and unfairly benefits from the good will associated with milk products or other healthy beverages.” The plaintiff also alleges that Muscle Milk® marketing suggests to consumers that the products contain milk and are thus “healthier beverages when compared to competitor’s products, including the Plaintiff’s products.” By selling the products in “flavors traditionally associated with milk,” including chocolate, chocolate malt and shake, and marketing the products as “lactose free,” the defendant allegedly bolsters this deception.

The plaintiff seeks declaratory and injunctive relief, trademark registration cancellation, attorney’s fees, and costs for alleged violations of the falseadvertising provisions of federal trademark law. 15 U.S.C. § 1051, et seq.