Bloomberg BNA’s Patent Trademark & Copyright Journal® is the IP industry’s premier news service, offering customizable, objective, timely, and reliable news coverage and commentary from leading...
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.
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.)
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.)
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.
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.
[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.
To contact the reporter on this story: Tamlin Bason in Washington at email@example.com
To contact the editor responsible for this story: Anandashankar Mazumdar at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)