Kellogg's Stakes Claim To Toucans, Mayan Imagery; Issues Cease-and-Desist To Guatemalan Non-Profit

from the too-bad-the-court-of-public-opinion-doesn't-accept-settlement-offers dept

Thu, Sep 8th 2011 12:01pm — Tim Cushing

When it comes to preventing "morons in a hurry" from mistaking "Unrelated Product or Service X" for "Unrelated Product or Service Y," no one seems to be quicker on the draw than large corporations with nothing to lose but a public relations battle.

Overlawyered points us in the direction of the latest entrant in the Misguided Trademark Defense Sweepstakes^TM. Kellogg's has apparently decided that the Maya Archaeology Initiative is treading dangerously close to its breakfast cereal turf. A cease-and-desist letter was sent to the non-profit group after Kellogg's discovered MAI's brazen use of a natural, tropical bird in its logo, specifically one with an unusually large nose that may possibly be used to discover the great flavor of fruit. (Or something.) Lowering the Bar has more details:

MAI, a non-profit that supports education for Guatemalan children (as well as archaeology), got a cease-and-desist letter from Kellogg's lawyers in July saying that Kellogg was concerned about an application to use the logo in connection with clothing, given that Sam also appears on clothing. Kellogg said it was also concerned about the use of "Mayan imagery" in the mark, saying that Sam also sometimes appeared in a similar setting.

Kellogg's must have some serious doubts about these fast-moving morons if it's truly concerned that children may end up with a shirt featuring the mascot of a non-profit entity rather than a finely crafted Toucan Sam shirt conceived by a marketing department and (possibly) manufactured by children in their same age group. Even more amazing is the fact that Kellogg's feels pursuing a claim against a non-profit group somehow is the right thing to do.

To its credit, MAI seems to be handling the situation well, issuing a solid statement (via Sarah Mott of the World Free Press Institute) pointing out the clear differences between the two toucans:

Mott noted the differences between the two toucans, including coloration, beak shape, and the fact that MAI's bird is based on birds that actually exist in nature. Like other such birds, MAI's bird does not have a name. Also, MAI's logo includes a Mayan step pyramid and is egg-shaped, so it is more than just the bird. MAI doesn't plan to sell cereal, and so "[u]nless either of these toucans or their purposes change, there would be no incentive or reason for MAI to associate with Kellogg" and no likelihood of confusion.

Not only that, but Kellogg's bizarre claim to Mayan imagery (w/r/t Toucan Sam) is also groundless. Mott visited Kellogg's websites to see what sort of "Mayan imagery" it was employing, and came up damn near empty-handed:

Mott said she had looked at Kellogg's websites in an effort to explore this claim. The only imagery she could find that was even "vaguely Mayan," she said, was on the Froot Loops site, which includes a number of "Adventure" games set in various locales. Generic pyramids do appear in one of those, she noted, but there doesn't appear to be anything distinctively Mayan about them.

It gets better/worse. Mott points out that the "the only quasi-Maya depicted there is not depicted favorably:"

Disturbingly, the villain in this Kellogg Adventure and its related games -- and the only character who is of color [other than the birds] -- is a "witch doctor" with a cackling screech. Apparently, he is supposed to be a Maya. At best, this is culturally insensitive. I would characterize it as a demeaning caricature of an advanced and ancient civilization about which your game developers know nothing.

This situation has led to some other amusing comments. Dr. Estrada-Belli (MAI) stated that Kellogg's claim was "a bit like the Washington Redskins claiming trademark infringement against the National Congress of American Indians." And the MAI itself has released a statement saying that it has "no present intention of directly challenging Kellogg's disrespectful treatment of Mesoamerican indigenous culture."

As it stands now, both parties are in settlement talks, but the stench of trademark-bullying is already starting to descend on Kellogg's vitamin-fortified shoulders. And more evidence continues to amass on the relative "soullessness" of lawyers. You would think that someone on the legal team might say, "You know, there's no way we come out of this looking good" or better yet, "There's no way the Mayan Archaeological Institute is part of this complete breakfast," but, as we've seen here at Techdirt time and time again, the urge to protect "intellectual property" tends to make a mockery of the first word in that phrase.

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Filed Under: toucans, trademark
Companies: kellogg, mai

52 Comments

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theDude, 8 Sep 2011 @ 12:07pm

There Lawyers
Lawyers do what they do, leave how it looks to marketing and the PR people.
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Dark Helmet (profile), 8 Sep 2011 @ 12:18pm

Wow...
That entire last paragraph had me laughing hard. Thank god we can at least have a sense of humor about these idiots....
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Anonymous Coward, 8 Sep 2011 @ 12:23pm

Kellogg's is so stupid.Must be what happens when you live on a Diet of Fruit Loops.............sounds like you turn into one.
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Anonymous Coward, 8 Sep 2011 @ 12:26pm

The issue is always the same: If they don't defend it, they can lose it. If something is "close", they need to address it, for risk that they lose control of the trademark.
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heyidiot (profile), 8 Sep 2011 @ 12:26pm

Sounds familiar...
Hey, yeah, didn't Sun Microsystems sue the island of Sumatra a few years back...?
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DH's Love Child (profile), 8 Sep 2011 @ 12:32pm

Re:
There is no danger of losing control of a trademark for an area of commerce for which it doesn't apply. Explain to me how this is even 'close'
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pegr, 8 Sep 2011 @ 12:33pm

Exxon tiger versus Tony the Tiger as well...
http://www.zelle.com/featured-8.html

And the stupid part: Exxon settled with Kelloggs. It seems the lawyers do it because it works. Kellogg's lawyers? "They're Great!"
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Anonymous Coward, 8 Sep 2011 @ 12:44pm

Re: Re:
"when in doubt"....
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Charles K. (profile), 8 Sep 2011 @ 12:44pm

Y'know, I think our good friends at Guinness would have something to say about Kellogs' trademark claim to the toucan. (http://www.toucans.info/guinness.html)
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Chuck Norris' Enemy (deceased) (profile), 8 Sep 2011 @ 12:51pm

Re: Exxon tiger versus Tony the Tiger as well...
Hey, the lawyers all get paid in the end!

Guess I'm sticking with Millville's Fruit Hoops for the kids.
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TheStupidOne, 8 Sep 2011 @ 1:02pm

Re: Re: Re:
... sue first, look like a jackass later
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fogbugzd (profile), 8 Sep 2011 @ 1:08pm

Re:
There are other ways to protect your copyright. The easiest would be for Kellogg to send MAI a simple license to use the tocan and Mayan images. Kellogg's trademark would be protected by this action just as effectively as with a C&D order. In fact, the license might even be better protection in the long run if MAI ignores the C&D. And a nice letter with the license certainly would be better for Kellogg's public image.

This is what happens to companies when they let lawyers play at being managers.
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Dark Helmet (profile), 8 Sep 2011 @ 1:08pm

Re: Re: Re:
""when in doubt"...."

Rub one out?
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Nite Eagle, 8 Sep 2011 @ 1:10pm

Mayan artifacts??? Smells like a Fruit Loops/2012 EoTW marketing campaign is in the works.
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Anonymous Coward, 8 Sep 2011 @ 1:13pm

Re: Re: Exxon tiger versus Tony the Tiger as well...
"Hey, the lawyers all get paid in the end!"

Do they get paid in Froot Loops?
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Jimr (profile), 8 Sep 2011 @ 1:14pm

Someone needs a kick to the nuts. I am look at lawyers who target people/origination that find it cheaper to settle than pay the cost defend themselves from such obviously false claims. These logo's do not even closely resemble each other even after drink a 40 of whiskey.

MAI should petition the bar association to disbar the lawyers who are obviously engaged exploiting the legal system in this extortion plot.
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Jim_G, 8 Sep 2011 @ 1:16pm

"There's no way the Mayan Archaeological Institute is part of this complete breakfast"

HA! I love that phrase. As others have pointed out (http://tvtropes.org/pmwiki/pmwiki.php/Main/AdjacentToThisCompleteBreakfast), in cereal commercials they always place bowls of atomic-colored sugar cubes adjacent to real food like eggs and orange juice. Anything could be described to be �part of this complete breakfast� such as a tube of toothpaste or a pack of cigarettes.
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Anonymous Coward, 8 Sep 2011 @ 1:17pm

Re: There Lawyers
They're.
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Milton Waddams (profile), 8 Sep 2011 @ 1:21pm

They keep moving my desk
First to floor 15, but then they moved it again to floor 31, and I told Mike about it and he to tell Mr.Costanza. But then they moved my desk again to floor 64. And they've moved my desk four times already this year, and I used to be over by the window, and I could see the squirrels, and they were married, but then, they switched from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn't bind up as much, and I kept the staples for the Swingline stapler and it's not okay because if they take my stapler then I'll set the building on fire...
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:Lobo Santo (profile), 8 Sep 2011 @ 1:22pm

Re: Re: Re: Re:
"When in danger or in doubt
run in circles, scream and shout."

-Paraphrased (I think) from something I read in a Robert Heinlein book.
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Robert Doyle (profile), 8 Sep 2011 @ 1:23pm

Seriously
Why is a succinct 'fuck you' not enough of a defense for a case like this?

I can just picture the birds in the wild, being tracked down by lawyers, then being issued a 'cease to exist' order on grounds of their inspiration for the damn logo being an infringement of the logo (which is now more relevant than the actual bird according to the lawyers no doubt...).

Seriously.
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Qritiqal (profile), 8 Sep 2011 @ 1:29pm

Re: Sounds familiar...
I think they sued the glowing orb in the sky that used to be called the "Sun". Now we just refer to it as Bob.
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blaktron (profile), 8 Sep 2011 @ 1:34pm

Re: Re: Re: Re: Re:
The Moon is a Harsh Mistress. Instructions on what to do if you have a faulty air tank on the moon.
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bjupton (profile), 8 Sep 2011 @ 1:46pm

Re: Re:
why the hell should MAI license this from Kellogg's? A toucan? really?

They should not give in to them in any way. Kelloggs is acting like a complete ass-hat and they should be punished for this.
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bjupton (profile), 8 Sep 2011 @ 1:47pm

Re:
always amused by this.

if you eat this cereal (plus 3000 calories of other food!) you will get your vitamins and minerals! Huzzah!
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Some Other AC, 8 Sep 2011 @ 1:56pm

Re: Re:
There is no reason at all for MAI to seek any sort of license for the use of a toucan. This bird is natural to the geographic region that MAI is seeking to research. Kelloggs is just another corporate bully who has gotten too big for their britches. It will be interesting to see who gives the most in this case and i hope Mike follows it and posts the results.
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william (profile), 8 Sep 2011 @ 2:00pm

I think Kellogg's cereals are more fortified with sugar and artificial additives than vitamins.

Perhaps Kellogg's lawyers smoked too much of their own cereals and heard Toucan Sam yelling in the next room about some kind of trademark infringement. I mean, who can argue with a bird head?
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Anonymous Coward, 8 Sep 2011 @ 2:11pm

Well, that explains that one day I was trying to make a donation and ended up eating breakfast.
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Anonymous Coward, 8 Sep 2011 @ 2:28pm

Re: Re:
Ok, so...along w/ MPAA/RIAA sanctioned music...now Kelloggs is off my list of companies to purchase from?

Good to know, thanks!
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DOlz (profile), 8 Sep 2011 @ 2:32pm

Let them know
I just sent the following email to Kellogg's:

Until Kellogg's stops the stupidity in the article below I will no longer purchase any of your products. I am also sending a link to this article to everyone I know and encouraging them to do the same.

http://www.techdirt.com/articles/20110907/15550615845/kelloggs-stakes-claim-to-toucans-maya n-imagery-issues-cease-and-desist-to-guatemalan-non-profit.shtml
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Harry Payne, 8 Sep 2011 @ 2:44pm

Re: Seriously
"We refer you to the reply given in the case of Arkell v. Pressdram".
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Techdirt, 8 Sep 2011 @ 2:51pm

The answer was already posted as to why trademarks are defended in this way. Everything after that is spew. BTW, I thought I would adopt the name Techdirt, since I am human and your use is for a website, there should be no confusion.
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Jeffrey Nonken (profile), 8 Sep 2011 @ 2:58pm

Re: Re: Re:
...sue the entirety of South America for having the unmitigated gall to violate their trademark by harboring unlicensed toucans!
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Anonymous Coward, 8 Sep 2011 @ 3:02pm

Re:
oh no! Now how will I tell if I am on the techdirt blog or on your blog when reading your comment. Every time you post in the comments I will believe it's the top of the page and I'm reading an article. after all, the formating is totally the same
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Derek Kerton (profile), 8 Sep 2011 @ 3:21pm

5 + 0 = 5
- 12oz Milk
- 1 Banana
- 12oz Orange Juice
- Fruit Loops
- Ridiculous Trademark Suit

Ridiculous lawsuits. Part of this nutritious breakfast!
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trish, 8 Sep 2011 @ 5:21pm

what pisses me off is...
if you were to boycott all the idiot companies for making society more stupid, you couldn't BUY ANYTHING! Kellogg's? WTF do they NEED IP for? and THIS? WHYYYY!?!??
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G Thompson (profile), 8 Sep 2011 @ 10:21pm

A Toucan is the national Bird of Belize, you know that Central American nation full of MAYAN ruins!

Maybe Kellogg's should stop and think a bit and consider what happened to Warner Bros when trying to lay claim to the Tasmanian Devil called Tassie.. oops!

As Sam would probably squawk -

"Follow my nose! It always knows!"
"The flavor of effluence! Wherever Kellog's lawyers go!"
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G Thompson (profile), 8 Sep 2011 @ 10:41pm

Re: Re: Re: Re: Re:
Probably one of the best RAH quotes I know.
Though
"Never try to teach a pig to sing. It's a waste of time and besides it annoys the pig."
and
"Never attribute to malice that which can be adequately explained by stupidity."

by RAH are as well.

Interestingly, in context with what TechDirt is all about RAH wrote:

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped or turned back, for their private benefit."
--Robert A. Heinlein [Life-Line]

Now I have this urge to re-read "Time Enough for Love, and "Number of the beast".. there goes
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velox (profile), 8 Sep 2011 @ 11:31pm

Re:
Trademarks are defended this way because it is profitable for the lawyers, and because corporate managers aren't always as smart as the lawyers who are taking advantage of them (while they are taking advantage of the opportunity to generate billable hours.)
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Anonymous Coward, 9 Sep 2011 @ 4:41am

Re:
Don't worry. No one will ever confuse you with anything useful.
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Anonymous Coward, 9 Sep 2011 @ 4:44am

Might I suggest using Kellogg's comment form?
http://www2.kelloggs.com/ContactUs.aspx

List of foods you can avoid "Corn Flakes, Keebler, Pop-Tarts, Eggo, Cheez-It, Nutri-Grain, Rice Krispies, BearNaked, Morningstar Farms, Famous Amos, Special K, All-Bran, Frosted Mini-Wheats, Club and Kashi"
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Frobnosticate, 9 Sep 2011 @ 5:40am

A fitting quote
"You get up on your little twenty-one inch screen and howl about America and democracy. There is no America. There is no democracy. There is only IBM and ITT and AT&T and DuPont, Dow, Union Carbide, and Exxon. Those are the nations of the world today.

What do you think the Russians talk about in their councils of state -- Karl Marx? They get out their linear programming charts, statistical decision theories, minimax solutions, and compute the price-cost probabilities of their transactions and investments, just like we do.

We no longer live in a world of nations and ideologies, Mr. Beale. The world is a college of corporations, inexorably determined by the immutable bylaws of business. The world is a business, Mr. Beale. It has been since man crawled out of the slime. And our children will live, Mr. Beale, to see that perfect world in which there's no war or famine, oppression or brutality -- one vast and ecumenical holding company, for whom all men will work to serve a common profit, in which all men will hold a share of stock, all necessities provided, all anxieties tranquilized, all boredom amused." -- Arthur Jensen, "Network"
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hmm (profile), 9 Sep 2011 @ 6:27am

how
How can a lawyer claim trademark over a mesoamerican civilization reknowned for cutting out and burning the still beating hearts of innocents....oh wait nm
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hmm (profile), 9 Sep 2011 @ 6:29am

new ceral
Patent-O's

Then I'm gonna patent/copyright (etc) the basic concept of the circle.

Oh yeah then I'm gonna patent the concept of being a moron, so whenever anyone challenges me with the "moron-in-a-hurry" test I can charge a licence fee

Oh wait sorry Stephens Media/Righthaven beat me to it and apparently have full-ownership of the entire "being a moron" business model.
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jsf (profile), 9 Sep 2011 @ 7:52am

... You would think that someone on the legal team might say, "You know, there's no way we come out of this looking good" or better yet, "There's no way the Mayan Archaeological Institute is part of this complete breakfast," ...

While it may not amke Kellogg's look good it does make the lawyers look good. For many in the world of lawyers it is all about billable hours, and something like this generates a lot of billable hours. Thus the lawyers end up looking good, to other lawyers.
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Derek Kerton (profile), 9 Sep 2011 @ 12:08pm

Re: new ceral
Forget Righthaven. You just wrote "Patent-O's"

You are going to get a letter right now from these guys:

http://patentlaw.typepad.com/
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locutus (profile), 11 Sep 2011 @ 3:45am

It's easy to see where Kellogg's obtains its inspirations, given its years-old marketing association with Disney. I can see the Disney storm-troopers encouraging Kellogg's to go for this (the same way Disney completely usurped the story of Pocahontas...and, uh, anyone remember "Song of the South"??), over a few friendly lines of coke. These Disney bastards have no respect for anything not contrived to make a profit, especially if its older than 25 years or so.
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The Devil's Coachman (profile), 11 Sep 2011 @ 5:26am

Re: Re: Re: Re:
That looks to be what he just did. Wonder if he got any on his shoes?
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The Devil's Coachman (profile), 11 Sep 2011 @ 5:29am

Re: Re: Re:
I won't buy any of their crap-tastic products, most of which have the nutrtional value of styrofoam and sugar. They suck!
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The Devil's Coachman (profile), 11 Sep 2011 @ 5:32am

Re: Re: Exxon tiger versus Tony the Tiger as well...
Yeah, I'd like to see them get paid in the correct end, with lead coinage.
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The Devil's Coachman (profile), 11 Sep 2011 @ 5:39am

Disney and Kellogg's lawyers fellate ponies
But only the pretty ones!
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Pepelaputr, 19 Sep 2011 @ 9:50am

Kellogg's Stakes Claim To Toucans, Mayan Imagery; Issues Cease-and-Desist To Guatemalan Non-Profit
Where can I get a Maya Archaeology Initiative t-shirt? I'd like to support them.
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