The Likelihood of Generic Confusion

Deven R. Desai (Georgia Institute of Technology), The Likelihood of Generic Confusion, Wis. L. Rev. (forthcoming):

Just as people are asking the government to resurrect a progressive era stance on anti-trust and consumer protection in the technology sector, we should ask the government to take on consumer protection efforts in agriculture. The growth of technology-driven food production for synthetic diary, meat, and other foods and for potential food substitutes is part of a global market expected to reach $162 billion in sales by 2030. Conflicts over whether a new product created in a lab or engineered to be a substitute can be called a milk or meat or grain will persist and are likely to grow. This paper uses the conflict between the multi-billion-dollar milk and plant-based beverage (PBB) industries as a lens to show how society can support both food production innovation and consumer protection.

New food production and marketing can improve food security but can also foster misinformation and create public harm. For example, PBB “milks” don’t meet the legal standard for milk, but the PBB industry wants to use the word “milk” for its products to reach the dairy market. At the same time, medical research shows infants, toddlers, adolescents, and adults are harmed by confusion created when the PBB industry uses the term milk. Consumers don’t know that PBBs often lack the same nutrition as milk and so are not receiving the nutrition they need. Similar issues are appearing in other substitute and synthetic food sectors. Put simply, food innovation and marketing can often clash with public health and consumer protection.

The current caselaw offers unsatisfying analysis of and solutions for the problem. Caselaw to date is thin in part because the FDA tests for harm are underdeveloped and undertheorized. This article fills this gap by developing a new test, the Likelihood of Generic Confusion Test, to address when advertising and branding use of a generic term may harm the public. The test draws on several aspects of trademark law including the deceptively misdescriptive marks test, the likelihood of confusion test, and genericism doctrine. By combining these doctrines, the test offers a path to allowing innovative food production and creative marketing to thrive while also protecting consumers from unnecessary and harmful business practices.