The Skinny (Cow) on Weight Watchers v. Nestle

Posted by | April 13, 2010 | General | No Comments

This posting is about the recently filed trademark case Weight Watchers International Inc. v. Nestle U.S.A. Inc., 09-07964, U.S. District Court, Southern District of New York (Manhattan).

MY DISCLAIMER — I have not read the complaint.

Instead, I saw Joel Rosenblatt’s article in the news section on the e INTA LinkedIn Group.

Joel’s article states that Weight Watchers sued Nestle because it’s Dryer’s ice cream sub-brand, SKINNY COW, improperly displays the Weight Watchers POINTS mark on the SKINNY COW packaging.  So, next I looked at a package of SKINNY COW ice cream sandwhiches.

It states:

WEIGHT WATCHERS* POINTS=3
* Weight Watchers(R) and POINTS(R) are registered trademarks
of Weight Watchers Int’l, Inc.  The points provided here were
calculated by Dryer’s Grand Ice Cream, Inc. based on published
Weight Watchers information and do not imply sponsorship or
endorsement of those points or of The Skinny Cow(R) by Weight
Watchers Int’l, Inc.

I don’t think this is a trademark use, especially with Nestle’s disclaimer (albeit in smaller font than the Nutrition Facts, many people would need glasses or a magnifying glass to read it).  If consumers actually read the language below the POINTS, then no one will be confused into believing that a sponsorship or endorsement exists between Weight Watchers & Nestle.  I won’t speculate as to whether anyone other than curious trademark counsel actually reads that teeny, weeny disclaimer.

I do think it is unfair for Nestle to benefit from using Weight Watcher’s POINT system without permission.  Nestle must have intended to and likely will lure customers away from Weight Watcher’s by use of Weight Watcher’s nutrition measurement POINTS brand.  Further, presuming that Weight Watchers licenses its POINTS brand to competitors, then Nestle’s unauthorized use has the demonstrable effect of denying Weight Watchers’ licensing revenue.

It will be intresting to see how this case boils down.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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