It actually looks like they were pretty reasonable here, as they offered money for the company to help rebrand even though they were clearly infringing on their copyright. Of course, there are three sides to every story.
To me, this would be the expected second step, for someone infringing on their trademark. Like if a person steals your car, then you confront them and try to strike a deal to prevent involvement of authorities. If you ignore that, I think it is reasonable to expect them to report you to the police, and you to get charged with theft.
I don't think they expect to actually get 15M from this suit. Honestly, it seems like they wanted to avoid the suit altogether, because of how it looks from a PR POV.
I’m not GP, but I can take a crack: A case against a limited liability corporation for infringing on a trademark is not like murdering someone and burning down their house because no one ends up dead and no houses are burned down, and it is an appealable judgement made by a court based in legal precedent.
The damages listed in a lawsuit have nothing at all to do with the reasonableness of the parties involved.
By the time a lawsuit is filed you are already deep into a civil dispute, and very few civil disputes ever go to trial. Filing a lawsuit at all is the nuclear option for when all reasonableness has already broken down. You only go to court as the nuclear option after both parties reach an impasse.
15M is almost certainly just a result of mathematically adding up the damages the law provides for. That's how going to court generally works -- your lawyer will ask the court for everything the law provides for. Then the court will decide what is reasonable to actually award. Going to court is very expensive, and it is why ~99% of cases settle before going to court.
Clearly infringing on what? Do they have "leggo my eggo" itself trademarked? And is it really reasonable to think there's consumer confusion between a waffle and an egg roll that isn't using the word "eggo"?
I would say they're clearly not infringing on any plain "eggo" trademark.
The entire business is branded like Eggo waffles. The colors used, the font and stylistic “E” are the same, the white outlining of red letters on a yellow field is copied. It isn’t just the name and phrase, the entire brand is copied over.
I’m not making a judgment on the morality of the law. But under the law itself, I can completely understand how Kellog’s has a strong claim here
The stylistic 'E' actually looks nothing alike if you look at the picture in the complaint linked elsewhere in the thread[0]. Just about the only similarity is that it's vaguely cursive red with white outline. The 'E' is probably the most obviously different part.
It's immediately obvious to anyone with a functioning brain that it's a parody, so only a corporate lawyer could be so dishonest as to write that it's "likely to deceive and cause confusion, mistake, or deception among consumers or potential consumers as to the source of origin of Defendant’s goods and services and the sponsorship or endorsement of those goods and services by Kellogg". Their truck screams "this does not follow modern 'corporate' branding/style guides, so is obviously not approved or associated with a multinational company like Kellogg."
Quite interesting to see the product placement examples in the document though as evidence their "renown".
Are you looking at the Eggo logo in that filing from the 30s? If you look at the modern Eggo logo shown later in the filing compared to the egg roll trucks usage of it in “L’Eggo my eggroll” it is clearly so similar that it is hard to distinguish which “L’Eggo” belongs to the truck if you isolate them.
Parody and fair use are also significantly weakened in law when the use is commercial and without social commentary. Protected parody needs to be more than “I copied your branding style for my business”.
Again I’m not arguing that the law is moral or immoral, just that Kellog’s has a strong claim here under the law given that the branding as a whole is clearly copied from the Eggo brand, and that there is no evidence here that the food truck is trying to make fair use for the purposes of free speech, commentary or parody.
Is anyone going to confuse a waffle with an eggroll? No. But it is perfectly reasonable to think that the food truck is somehow associated with the Eggo food brand. Large corporations do stuff like operate offshoots and pop ups in adjacent niches. Look to IHOP’s brief marketing stunt rebrand to IHOB for an example.
I'm looking at all of what's in that document. The 'E' is literally the most dissimilar letter. It's very obviously distinct, and even more obviously distinct when isolated. In any case, they might legally prevail, but let's not kid ourselves: no one is going to be confused. The lawyer who wrote that is not just immoral in some abstract sense; they are concretely a disingenuous liar.
Arguing the "E" in the "Eggo" trademark and the "E" on the egg roll truck are so distinct that anyone arguing it must be lying is not a reasonable position.
My commentary on the 'E' is a response to that being specifically called out as the same in an earlier comment when it's specifically not the same if you actually look at it. The bit about the lawyer lying is what I quoted from the court document: that it's "likely to deceive and cause confusion, mistake, or deception among consumers or potential consumers" about whether this is endorsed or associated with Kellogg. And yes let's not kid ourselves, that is a lie. No one including the lawyer thinks that's true. Saying things that you obviously think are untrue is lying, even if you do it professionally.
I called out the E as one of numerous obvious similarities in the styling of the motto, not specifically. You are choosing to focus on just the E instead of the other similar elements taken as a whole. We can drop the disagreement over that specific letter and my argument as a whole still stands.
Here’s the only context I
Mentioned the E:
“The entire business is branded like Eggo waffles. The colors used, the font and stylistic “E” are the same, the white outlining of red letters on a yellow field is copied. It isn’t just the name and phrase, the entire brand is copied over.”
If it were just the E it wouldn’t be much of a claim. But it is clear to even a casual observer that the food truck business’ entire brand is based exclusively on recognizable elements of the Eggo brand.
You keep acting like Kellog’s is a villain here, but according to both parties Kellog’s attempted to resolve this amicably out of court. They went so far as to offer to pay for the cost of rebranding the truck as a goodwill effort and contacted the lawyer representing the food truck’s corporation over the course of months in attempts to solve it out of court.
It's based on recognizable elements because it's clearly parodying them; they are not copying the brand. They are not relying on people thinking there's an endorsement or association with Kellogg. They're relying on a chuckle. This stuff is all obvious to anyone with enough reasoning ability to pass the LSAT (or anyone who can pass middle school), so obviously any lawyer who claims otherwise is a disingenuous liar.
Lying like that might be par for the course, but that's why lawyers have a bit of a poor reputation when it comes to ethics.
I only mentioned the E because you did, and it's the most obvious element to display that in fact the font is completely different; the only similarity is "vaguely cursive". It's that sort of "clearly referencing X but obviously 'off'" look that parodies shoot for.
Parody defense typically relies on there being an underlying comment about the brand or product. Commercial use with no clear speech purpose will not be looked on favorably by a court. Copying someone’s brand isn’t a parody by the court’s Rogers test which will be applied in this case to determine if it is a legal parody.
The Rogers test:
> First, the Court must determine whether the work at issue is “expressive” — that is, does the work “communicat[e] ideas or express[ ] points of view.”
Second, if the work is expressive, then the plaintiff must show that the defendant’s use of the trademark either (i) is not artistically relevant to the work, or (ii) is explicitly misleading to consumers as to the source or content of the work.
There is no idea or point of view being communicated by naming your business L’Eggo my Eggroll and copying the colors and style, and I haven’t seen the defendants arguing that. So the second part of the test won’t even be considered.
There actually is case law around bad puns/rhymes as parody branding (Bad Spaniels dog toy shaped and styled like Jack Daniel’s bottle). The court did not accept it as fair use since there isn’t a comment or idea being communicated. It doesn’t matter that no one is going to confuse a dog toy with a bottle of whisky. “We operate an eggroll food truck” is not going to be accepted as an idea or comment for the purposes of parody.
They could argue that they are not actually copying the trademark, but the use of the phrase and colors is pretty damning even if you accept that the cursive is not the same (I don’t see a court buying that the cursive is different enough. It doesn’t matter that it isn’t a stencil perfect match in the totality of circumstances.) This argument is also mutually exclusive to the parody argument since it attempts to deny that there is any brand similarity.
Ironically, someone could now sell t-shirts saying “L’Eggo my trademark” using the exact font and it would be pretty clear fair use parody of Kellog’s lawsuit. It would be a comment specifically poking fun of them suing over that phrase and branding, and the absurdities of trademark law.
I’m not saying that any of this is right or wrong, I’m just saying that from a legal perspective Kellog’s is on pretty firm ground from all publicly known information.
The latest I can find on Bad Spaniels is that the courts concluded they did not infringe the trademark exactly because it was an obvious parody, but that it tarnished the brand because of the association with dog feces[0]. Notably, it seems that brand confusion is still central to the infringement question, and SCOTUS ruled that parody plays into that.
> Reaching the Supreme Court, the case took another turn in 2023 when the Court vacated the Ninth Circuit’s decision, unanimously ruling that the Rogers test does not apply in cases when a trademark is used as a source identifier, rather than as a purely artistic work. As a result, the Supreme Court remanded the case for the district court to reconsider Jack Daniel’s counterclaims under traditional trademark principles.
In the food truck case, clearly they are using it as their own brand identifier (so it's analogous to Bad Spaniels), and clearly it is a parody, so clearly it is not trademark infringement as with BS. Unlike the BS case, they're also not tarnishing the Eggo brand, but just making a playful pun, so that outcome doesn't seem likely here.
You misinterpreted the outcome of that case. The ninth circuit ruling was in favor of VIP. The Supreme Court overturned that ruling and said the lower court needed to discard the rogers test as exculpatory for VIP/BS.
I’ll use a direct quote from your own source to explain how the actual ruling ended up losing the case for BS:
…the district court found that it nevertheless dilutes the fame and distinctiveness of the whiskey maker’s reputation, thereby still running afoul of the Lanham Act’s anti-dilution provisions. The amended order follows the Supreme Court’s decision ending the application of the more liberal Rogers First Amendment test in trademark cases involving expressive works used as source identifiers. In doing so, while finding that the parody of the “Bad Spaniels” dog toy decreased the likelihood of confusion with Jack Daniel’s by modifying the analysis of certain factors in a light more favorable to VIP, the district court ultimately found VIP’s parody of the famous whiskey brand to be a double-edged sword that contributed to finding dilution by tarnishment.
/quote
The Supreme Court case said that because they were using a trademark as a brand identifier they couldn’t argue for a rogers test exemption. In other words if you use someone else’s trademark, even as a riff or joke, in your trademark, the bar is much higher. L’Eggo my Eggroll is doing exactly that.
Your argument that “In the food truck case, clearly they are using it as their own brand identifier (so it's analogous to Bad Spaniels)” perfectly encapsulates why this is a violation once you grok the outcome of the court case. Bravo for phrasing it so succinctly.
But it's not tarnishment. In the BS case, they found that it wasn't infringement, but that they were using it in a way that would cause reputational damage (also dubious, but sure). Here it would seem the claim that it causes reputational damage is even more tenuous; the food truck is not portraying them in any kind of negative light. In fact, an even better fit is likely the Chewy Vuitton toys[0]:
> While it is true that finding a mark to be strong and famous usually favors the plaintiff in a trademark infringement case, the opposite may be true when a legitimate claim of parody is involved. As the district court observed, "In cases of parody, a strong mark’s fame and popularity is precisely the mechanism by which likelihood of confusion is avoided."
> In a similar vein, when considering factors (v) and (vi), it becomes apparent that Haute Diggity Dog intentionally associated its marks, but only partially and certainly imperfectly, so as to convey the simultaneous message that it was not in fact a source of LVM products. Rather, as a parody, it separated itself from the LVM marks in order to make fun of them.
In the BS case, SCOTUS explicitly noted that parody is a factor in determining confusion and therefore infringement[1]:
> But a trademark’s expressive message—particularly a parodic one, as VIP asserts—may properly figure in assessing the likelihood of confusion ... So although VIP’s effort to ridicule Jack Daniel’s does not justify use of the Rogers test, it may make a difference in the standard trademark analysis. Consistent with our ordinary practice, we remand that issue to the courts below.
And then the ultimate conclusion was that it was not infringement. SCOTUS ruled the lower court had taken an incorrect shortcut, but ultimately the answer (on the infringement question) was the same for basically the same reason.
I guess, but it's still distasteful, especially when it's a corporation saying it and the corporation is incentivized to exaggerate/mislead to an extreme.
> You also cannot "lie" about an opinion about what might confuse other people.
What are you talking about? Of course you can lie about your opinion. And the opinion involving other people doesn't change that.
I'll do it right now: I think basically nobody likes ice cream, they're all faking it to fit in.
The full complaint linked above has a full list of trademarks. There's also a claim for trade dress infringement, since the food truck uses the same font and red-yellow-white color scheme.
If Kellogg doesn't defend their trademark, they lose it.
An amicable middle ground might be for Kellogg to let the business purchase rights for $1, but if that happened it would open up a flood of this.
Kellogg has so much money in that brand recognition, they'd lose far more than $15 million if it became a generic slogan. The $15 million is a token amount to get the small business to abandon its use. Kellogg doesn't want to litigate. They tried several times not to litigate.
I'm sure Kellogg would be happy to pay the business more than the cost of repainting their truck, buying some marketing materials, pay for the trouble, etc. It's easy good will press for Kellogg and the business gets a funny story and their own marketing anecdote. It's cheaper than litigation, too.
If you look at the court filings linked elsewhere in this thread, it isn't as simple as just a slogan. They copied the trade dress to the point that the truck looks like a Kelloggs waffle box.
Trademark law does have carveouts for people that are selling different products, doing parody, etc. But that isn't what this is.
There are carveouts for things like parody and fair use, but running a restaurant that uses wordplay of a very specific marketing phrase, the same colors and fonts, and branding
is the issue.
If you go look at pictures of the truck, the business branding, and other things it is very clear why Kellog’s has a good argument that their trademark is being used in a way that could damage the brand, or confuse consumers.
This isn't a "supposed law" or some new interpretation, this is pretty well established part of trademark law dating back to the 1800s in the US.
The flip side of the law is that you have to be active in defending and using your trademark if you want to keep it. It prevents the sort of patent troll abuses we see in that system.
If "Leggo my Eggo" was last used years ago by Kellogs, and they haven't used it or defended it or other "Eggo" related trademarks since then, a court is much more likely to allow the use by other businesses, even if Kellog's still hold the registered trademark.
Kellog's choices here are to risk losing or weakening the trademark as a whole, or to sue since the other party has rejected other solutions.
If you were taught that law you were also taught that every use of a given word doesn't immediately mean infringement if it doesn't present a danger of confusion.
This tone is unnecessary, unhelpful and against the spirit and rules of the site. It also doesn’t advance the conversation. If you disagree, that’s fine, but refrain from using invalid techniques like ad hominem attacks and straw men arguments.
Edit: looked at your comment history and realized I’m not going to get anywhere with this. This is just how you behave when presented with information.
Rules of this site also ask for argumentation that goes beyond "someone sued so they must be right".
You made a claim of trademark infringement when in reality no such thing was actually proven. You just automatically assumed the big corp was right based on something that even the lawyers don't yet agree on. I'm sorry if me calling you out on your bullshit makes you angry to the point where you felt the need to sift through my posts for a personal attack.
> The way trademarks work is that if you don't actively defend them you weaken your rights.
I mean this is the OP sentence, it's not about the food truck, it's about setting a precedent that you don't care, which costs you later when a competing brand starts distributing in a way that can actually confuse consumers.
Courts will look at the level of systematic tolerance. If you have a history of vigorous enforcement, it will be harder to argue in the future that a borderline dilution should be allowed.
If you allow borderline dilution, the court is going to consider what you have let other people get away with in the past.
I would still be interested in a real case where a trademark owner ignored a borderline case and this later resulted in an adverse ruling when a more concrete interest was at stake.
Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252 (5th Cir. 1980) The record showed a history of extensive third‑party “Domino” uses (including other food and grocery products). That crowded field made Amstar’s DOMINO relatively weak outside sugar, and Domino’s Pizza prevailed. Link:
https://law.justia.com/cases/federal/appellate-courts/F2/615...
