"Got Milk?" How About That for Generic Branding?

One of the fascinating aspects of trade mark law is its penchant for seemingly internal
contradictions. The most notable is, of course, the distinctive mark that is so successful that it becomes generic and thereby loses all distinctive power. Another example is that wonderful ground for rejection-- that the mark is "geographically misdescriptive". If you manage to show that the mark is not misdescriptive, you are then faced with the examiner's claim that the mark is still unfit for registration because it is geographically descriptive. The examiner gets you both coming and going.

This Kat would like to propose another seeming contradiction--the branding of a generic name. As a matter of black-letter law, a generic name is by definition bereft of all distinctive power as an indicator of source. As such, a generic mark cannot serve as a protectable trademark. But there are circumstances in which a generic name can be the subject of a full-scale branding campaign and later enjoy goodwill as a brand of its own. There is no better example than the U.S.-based campaign for the milk industry based on the tag line "Got Milk?", accompanied by the image of well-recognized face adorned with a milk-based white moustache.

The problem for the milk industry is that milk consumption continues to decline. Moreover, there is no brand awareness for white milk: there is no COCA COLA equivalent brand for milk. Within a given category of milk (or even a sub-category, such as whole milk or skim milk), one brand is pretty much like any other. Hand over heart, how many of you choose your carton of white milk based on its brand? Purchase is based primarily on price and access to the carton in the grocery cooler. Brands for white milk have little power to draw custom to their specific product.

Also, the nutritional biology and chemistry of milk have conspired against it. We are told that evolutionary developments that took place less than 10,000 years ago brought about a change in our digestive make-up and have enabled us to be lactose tolerant with respect to milk (lactose being a sugar contained in milk). But the results of that evolutionary process are uneven -- as is described on an educational site entitled "Understanding Evolution", produced by the University of California here:

"In the US and many other countries, we've certainly "got milk," but not everyone can enjoy it. For around 10% of Americans, 10% of Africa's Tutsi tribe, 50% of Spanish and French people, and 99% of Chinese, a tall cold glass of milk means an upset stomach and other unpleasant digestive side effects. In fact, most adults in the world are lactose intolerant and cannot digest lactose, the primary sugar in milk. And yet, regardless of our ancestry, most of us began our lives happily drinking milk from a bottle or breast — so what happened in the intervening time? Why do so many babies enjoy lactose and so many adults avoid it? The answer is an evolutionary story that takes us from the milkmaids of the Alps to the Maasai herdsmen of Africa."

Against these obstacles, one solution, as proposed approximately 20 years by the California Milk Processing Board, was to embark on a branding campaign--under the slogan "Got Milk?"-- to encourage increased consumption of white milk, whoever was the source of the product to the ultimate customer. As a matter of message, the campaign eschewed exhortations about the health advantages of milk. The Board was convinced that people are aware that milk "is good for them". Nevertheless, people opt for alternative forms of drink, even if less healthy, with the result that white milk is decreasingly being consumed. Accordingly, the message of the campaign focused on "milk deprivation", such as confronting a plate of cookies, but having no milk to wash them down. Hence the tagline--"Got Milk?" As a consumer, the goal was the ensure that the next time that you want to eat that plateful of cookies, there is a supply of white milk in the refrigerator.

Perhaps the most notable distinctive aspect of the Got Milk? campaign was the use of an image of a well-known personality adorned with a white milk-based moustache. This Kat assumes (do correct me if I am wrong) that pictures of the glamorous and famous adorned with the iconic milk-colored moustache are well-known to readers. Examples are found at the top and bottom of this paragraph (I leave you to figure out who the public figures are.)

The Board licensed the branding campaign to milk-producers and dairy farmers. And the result? It depends upon how you look at things. On the one hand, as noted, aggregate white milk sales continue to decline (save perhaps an increase in white milk consumption in California itself). But as a branding campaign per se, it has taken on a life of its own. As reported in Wikipedia here, "Got Milk? is one of the most famous commodity brand and influential campaigns in the United States. ... According to the Got Milk? website, the campaign has over 90% awareness in the US and the tag line has been licensed to dairy boards across the US since 1995. Got Milk? is a powerful property and has been licensed on a range of consumer goods including Barbie dolls, Hot Wheels, baby and teen apparel, and kitchenware. The trade marked line has been widely parodied by groups championing a variety of causes. Many of these parodies use a lookalike rather than the actual persons used in the original Got Milk? adverts."

What do we make of this branding campaign for "milk"? Several thoughts come to mind:

1. It is clear that there is no "brand" in the traditional trade mark sense. The goal of the Got Milk? campaign is to give a boost to an industry rather than to any particular brand-holder vis à vis its competitors. When I studied competition law in the 1970s (sigh), we were taught to distinguish between interbrand and intrabrand competition; the first referring to competitors within a given product category, while the latter refers to distributors and retailers as they compete to sell a given branded product. This distinction is simply irrelevant in our situation, because what is being branded is an entire product industry, identified by its generic name. At this level, trade mark branding and commodity branding are divergent.

2. However, the Got Milk? campaign can be seen as converging with a small number of highly successful and powerful traditional brands at the collateral product level. In both cases, the success of the brand has turned it into a commodity in its own right. Of course, no trade mark practitioner will admit that a trade mark can be a commodity per se. We seek to bound the commodity aspect of the highly successful brand by notions such as well-known marks and dilution, so that we can preserve the legal integrity of the mark and brand and engage in legally accepted forms of licensing. But at the end of day, a form of commoditization of the mark and brand has taken place.

3, Something similar, at least in result, seems to be going on with respect to the Got Milk? brand. Here (and unlike the well-known trade mark), the Got Milk? campaign does not appear to have been particularly successful in achieving its principal aim, namely to increase consumption of white milk. But the campaign has been deliriously successful in achieving commodity-like status for the brand, thereby enabling it to be licensed for use in industries far-removed from the milk industry. In so doing, Got Milk? has gone the full route from branding generically to becoming a brand in its own right.