New Food ‘Pyramid' Did Not Infringe Site's Interactive Nutrition Game for Kids

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By Tamlin Bason

Aug. 26 --That both the government's new food “pyramid” and a plaintiff's online interactive game feature circular plates divided into sections of various sizes was not enough to sustain a trademark infringement claim, the U.S. District Court for the District of Colorado ruled Aug. 25.

Granting summary judgment on the plaintiff's Lanham Act claims, the court found persuasive the Department of Agriculture's “unrebutted evidence that the use of a plate image divided into sectors for the purpose of conveying nutritional information has been both common and longstanding.”

The plaintiff's use of a plate image was different only in that its sectors were empty, and it allowed Internet users to then populate the sectors by clicking and dragging nutritious food options to their assigned areas. This distinction, however, was not enough to generate any conceptual strength for the plaintiff's mark, the court said.

The court did not rule on whether the plaintiff's mark was entitled to protection in the first place. Moreover, it said that it “has some doubt that the USDA's use of the mark can be said to be of a commercial nature.”

Still, the court determined that there was no likelihood of confusion and so granted summary judgment on the trademark infringement and unfair competition claims. The government's counterclaim, which seeks cancellation of the plaintiff's service mark registration, will proceed to trial.

Pyramids Out, Plates In

The U.S. Department of Agriculture unveiled its original food pyramid in 1992. The pyramid was tweaked in 2005 and in 2009 the agency announced plans to completely overhaul its dietary guidelines.

(Click image to enlarge.)

Food Pyramid 1

In 2010, the Department of Agriculture invited the public to participate in a competition to build interactive computer applications for children. The program, called “Apps for Healthy Kids,” was designed to encourage children to make healthy dietary decisions and to exercise more regularly. The plaintiff, Online Tools for Parents LLC, submitted an app under that program.

The app was available on the plaintiff's website, Zisboombah.com, where it first appeared in late 2009. The app was entitled “PickChow! Plate.”

The game featured a plate divided into five sections: (1) grains and starchy vegetables, (2) fruit, (3) vegetables, (4) meat and beans, and (5) dairy. The user was then able to click and drag food options from a side menu and drop them into the respective section on the plate.

If the user selected a meal that met certain nutritious levels, then the user could select a dessert, which was depicted by separate, smaller plate attached to the main image.

(Click image to enlarge.)

Food Pyramid 2

The final revised Department of Agriculture guidelines were also depicted as a plate. The new guidelines, entitled “MyPlate,” comprised four sections: fruit, vegetables, grains and protein. A smaller dairy section, also drawn as either a plate or a filled glass, was separate from the primary plate.

In June 2011, the plaintiff wrote to the Department of Agriculture threatening to file a lawsuit based on the agency's selection of a new food guidelines icon that so closely resembled its app.

The plaintiff then filed an application to register the PickChow! image as a service mark. The registration issued in 2012 and the plaintiff commenced this lawsuit shortly thereafter. The amended complaint asserted Lanham Act claims of trademark infringement and unfair competition.

Weak Mark, No Actual Confusion

Of the likelihood of confusion factors, only one favored the plaintiff: the icons were used in a similar manner for similar purposes. But that factor alone was “simply insufficient to overcome the clear distinctions between the two marks and the manner in which they are presented,” the court said.

Judge Marcia S. Krieger said:

[The plaintiff]'s mark is fairly weak, both conceptually and commercially on its own, and the USDA's MyPlate icon bears only superficial similarities to it. Perhaps because of those limited similarities, there is no evidence of actual confusion by customers between the two marks, nor, given the frequent use of sectored-plate imagery by others.

 

The court accordingly determined that the plaintiff had not carried its burden of demonstrating a genuine dispute of fact with regards to likelihood of confusion. It thus dismissed both of the plaintiff's Lanham Act claims.

Online Tools for Parents was represented by Michael Jacob Laszlo of Laszlo & Associates LLC, Boulder, Colo. The Department of Agriculture was represented by Scott David Bolden of the Department of Justice, Commercial Litigation, Washington, D.C.

Text is available at http://www.bloomberglaw.com/public/document/Online_Tools_For_Parents_LLC_v_Vilsack_et_al_Docket_No_112cv01883.

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Anandashankar Mazumdar at amazumdar@bna.com