ALL'S OK THAT ENDS 'A DAY'

LYNNE MILLER

There's room in the supermarket for two "A Day" campaigns, after all.

The National Cancer Institute, Bethesda, Md., and Dairy Management Inc., Rosemont, Ill., have settled their differences that puts to rest the trademark infringement lawsuit NCI brought against the dairy organization's 3-A-Day dairy logo last year.

NCI, which helped create the 5 A Day for Better Health campaign, launched more than a decade ago, charged that the dairy marketers stole the "A Day" suffix in creating their 3-A-Day for Stronger Bones campaign, which was unveiled last year and encourages consumers to have three daily servings of dairy products.

The produce logo has since expanded to read, Eat 5 to 9 A Day for Better Health.

Key points of the settlement, highlighted in a joint NCI/DMI news release, include the following:

DMI will create a "low-fat" version of its trademarks and will focus on a low-fat message in appropriate activities.

DMI will add its name to its trademarks, where feasible, to minimize confusion between the two trademarks.

By entering into the agreement, neither group is endorsing or sponsoring the educational message of the other.

Both groups will work to make sure its trademarks are not used in such a way that suggests overlap, endorsement, co-sponsorship of other forms of association.

If either group becomes aware of confusion caused by use of the trademarks, both groups will work together to eliminate confusion.

To date, the 3-A-Day mark's red, white and blue logo on designated milk, cheese and yogurt products has attracted more than 60 manufacturer partners, a campaign spokeswoman told SN. Some 60 retail partners, representing 53% of U.S. grocery sales, have signed on to support the campaign.

"We're pleased it's behind us and we can move forward," said Deanna Rose, DMI spokeswoman, of the settlement. "Now we can continue to focus our efforts to build up our success. We'll continue ahead and expand the campaign."

In keeping with the terms of the agreement, the dairy industry will develop a low-fat version of the 3-A-Day logo, she said, noting it creates an opportunity for marketers.

"We'll promote it on the Web site," she said. "We consider it a wonderful thing. It's another way to get the message out there. It's another exciting angle to promote the campaign."

The agreement came as a letdown for officials at the Produce for Better Health Foundation, Wilmington, Del. PBH was a vocal critic of the 3-A-Day campaign, contending the name infringed on the produce slogan. PBH and NCI also criticized 3-A-Day for masquerading as a public-health campaign while promoting products high in fat.

"Overall, the Produce for Better Health Foundation is disappointed that the NCI did not continue to challenge the apparent infringement on their mark," Elizabeth Pivonka, president of the PBH Foundation, told SN. "We think they had good cause to continue.

"We'll remain vigilant there's no infringement between 3-A-Day and 5 A Day. We still have seen confusion. A lot of people don't understand the difference between the two."

PBH hasn't ruled out working with dairy marketers on future cross promotions involving low-fat dairy products such as yogurt and cottage cheese. However, "we'll never do it under the 3-A-Day/5 A Day banner," Pivonka said. "We don't want any association with 3-A-Day."

Dairy marketers also have considered cross promotions with produce. "It's a natural collaboration," Rose said, noting dietitians have partnered locally with the 5 A Day campaign at health fairs and in-store promotions.

Right now, the dairy industry is gearing up for a major summer promotion that will educate consumers on the connection between drinking low-fat and fat-free milk and weight loss.