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Kellogg’s Toucan Sam Asserted Against Archaeology Initiative


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: September 2, 2011 @ 3:46 pm

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As I perused some press releases earlier today looking for something interesting to write about I stumbled across one put out by the Maya Archaeology Initiative, which claims that the Kellogg Company is threatening it with some unspecified legal action if it does not cease and desist using a logo that incorporates a toucan.  Although the press release is anything but clear as to the genesis of the dispute or the asserted wrongdoing made by Kellogg’s, it does seem relatively clear that Kellogg’s is saying that the familiar, perhaps famous, Toucan Sam cartoon character (see left) is being infringed by use of a toucan in the Maya Archaeology Initiative logo.

Threatening trademark letters are a dime a dozen in our industry. Frankly, most people and businesses don’t know what rights they have with respect to using a name, design or slogan in their business, so when they get a threatening letter that promises to destroy them and their business they simply capitulate. Scare tactics are nothing new in the trademark world, and much has been written about over zealous attorneys making statements in such threatening letters that simply aren’t true and clearly mischaracterize the law. In fact, the United States Patent and Trademark Office commenced a study earlier this year on abusive trademark litigation tactics. See Request for Comments: PTO Trademark Litigation Tactics Study.  But is this an abusive assertion by a rights owner or is the Maya Archaeology Initiative just trying to play the role of victim to gain public favor?

“This is a bit like the Washington Redskins claiming trademark infringement against the National Congress of American Indians,” said Dr. Francisco Estrada-Belli, president of the Maya Archaeology Initiative (MAI) and a globally recognized expert on Maya archaeology and culture.

Really?  Is this a case of gross over-reaching and unjustified coercive activity by a trademark owner, as the Maya Archaeology Initiative would like everyone to believe?  Is Kellogg’s asserting rights relative to a cartoon toucan used to sell Froot Loops® at all like the Washington Redskins of the National Football League claiming trademark infringement against an American Indian organization?  For that comparison to be at all legitimate it would seem that a toucan would have to be synonymous with either Mayans or Archaeology, which seems an extraordinary stretch if you ask me.

MAI's logo

According to the Maya Archaeology Initiative press release, a detailed response was sent by their legal representative to Kellogg’s, which among other things asserted that the toucan in MAI’s logo looks nothing like Kellogg’s cartoon character and said the two entities are not in competition. The press release goes on to say that the MAI’s logo is based upon a realistic toucan native to Mesoamerica, while Kellogg’s Toucan Sam is a cartoon character with colors that represent the Froot Loops® food coloring.

Really?  Wow!  Let’s take those one at a time.

First, do the toucan’s in question look anything alike?  I suppose there are differences and I suspect many will say that they are not all that similar in appearance, so even if I am not willing to side with MAI on the totality of their position I will concede that this assertion has at least some basis in reality.

Second, Kellogg’s and MAI are not in competition?  You might be tempted to want to side with MAI on this front, after all they are an organization that seeks to preserve the integrity of the Maya Biosphere Reserve as a cultural and natural landscape for the benefit of the local communities. But what if I told you that they filed a trademark application on June 15, 2010 to obtain rights for use relating to clothing products, such as t-shirts and hats? See Serial No. 85062781.   What if I further told you that their trademark was published for opposition on March 15, 2011 and has yet to be granted?  Doesn’t Kellogg’s Company put Toucan Sam on clothing products? So the “we don’t compete with you” argument seems specious given the classification under which MAI, by and through their partner (i.e., benefactor) World Free Press Institute, seeks protection for their mark.

Third, is the MAI toucan realistic and the Kellogg’s toucan merely a cartoon character? How could anyone actually make such an absurd argument? Clearly, the MAI toucan is also a cartoon-like character and not at all a realistic toucan. For the life of me I just don’t understand why attorneys make specious arguments like that, but I know that they do. Does a clearly specious argument ever help? As a rule of thumb if what you are arguing could be converted directly into a legalesque Monty Python skit the argument won’t work and it will only hurt!

The MAI press release also contained this call for Kellogg’s to stop attempts to enforce its rights, made by Estrada-Belli, a Guatemalan national whose organization promotes education opportunities for Maya children, archaeological work and defense of the rainforest:

Kellogg’s products are a staple of many Guatemalan households. We expect a brand that is so familiar to children to play a role in supporting cultural and racial understanding around the world, rather than undercutting it by promoting demeaning racial stereotypes.

We expect better from the Kellogg Company? So because they sell products in Guatemala that means that the Kellogg Company shouldn’t seek to protect and enforce rights they have lawfully and legitimately obtained when they believe someone is infringing, even if the infringer is a non-profit and/or do-good organization?  I’m not sure a “we should be able to trample your rights because of the children” argument is a defense to trademark infringement.

Who knows what will transpire moving forward.  Nevertheless, attempts by the Maya Archaeology Initiative to play the role of victim at the hands of an abusive international corporation seems greatly exaggerated if you ask me.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Trademark

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

37 comments
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  1. Eugene Quinn, you’re just another ambulance chasing lawyer that makes the rest of this world suffer with your greed.

  2. Jim-

    You seem rather challenged in your understanding of law and life. Would you care to explain exactly how and why a patent attorney chases ambulances? Do you even know what a patent attorney does? Do you know what a patent is? Do you know what a trademark is?

    Seems you are bitter at the world, and likely your current station in the world. Curious how you have time to provide meaningless and uninformed commentary in the comments to one of my articles.

    For future reference, comments at IPWatchdog.com are expected to be relevant to the article and convey a clear and non-paranoid message. If you wish to engage in low-brow commenting please go elsewhere.

    -Gene

  3. This is just corporate bullying. Hopefully with enough bad press and public pressure Kellogg give up. Is the India Tiger Conservation the next target? They also have a graphic representation of a tiger — somebody might mistake it for Tony.

    I see you know little about graphics, logos and cartoons. The toucan in the Mayan logo is a graphic representation — it is a stylized version of a real life Keel-billed Toucan (Ramphastos sulfuratus). It is accurate enough to tell the species.

    Sam is a cartoon character based on a very lose interpretation of “toucans” and does not resemble any live species.

    Just evidence that corporations have way too much time and money.

  4. The three major points you make are puzzling to me — or rather, the way they fit together puzzles me.

    First, in relation to the MAI’s defense that the two images look nothing alike, you concede that they are indeed dissimilar images.

    But then, second, you argue that the two entities are in competition, in terms of marketing. Now, if you concede that the two images don’t look alike, then it follows that they are not in competition, since no reasonable person could confuse them. Moreover, since the MAI is in the business of archeology, and Kellogg’s is in the business of selling cereal, there’s no way the MAI’s “products” could create an outcome that could ever encroach on Kellogg’s business. Indeed, from a business standpoint, it’s very much in Kellogg’s interests to have as many images of toucans circulating as possible, since they will tend to reinforce recognition of the toucan. But it may be that you are not talking about Kellogg’s primary product, cereal, but rather its promotional products. It may be that you are saying, specifically, that any t-shirt not made by Kellogg’s that has a toucan on it is taking business away from a similar t-shirt that Kellogg’s makes. Which implies that Kellogg’s owns the rights to any and all marketing material involving toucans — even ones that are, as you say, dissimilar. (I note that Van der Valk, a Netherlands-based hospitality company, also uses a toucan in its logo: http://en.wikipedia.org/wiki/Van_der_Valk_(company)
    If Kellogg’s does not also go after this company, I think it’s safe to assume that Kellogg’s does not believe that marketing material using toucans intrinsically encroaches on Kellogg’s marketing material.)

    Third and finally, you take exception to the MAI’s assertion that the Kellogg’s character is a cartoon-representation and the MAI’s is a realistic one, your point being that the MAI’s image is just as stylized. However, what the MAI asserts is that the *coloring* on the MAI toucan is based on the actual toucan native to Mesoamerica, whereas that on the Kellogg’s toucan matches the color of the cereal. And *that* statement is pretty unobjectionable; it’s really just an extension of the first point: that the images are obviously different, that no reasonable person could confuse the two. The point you are *claiming* the MAI is making might be thin, but it’s not the point they’re making.

    Near the end of your article, you ask, “Does a clearly specious argument ever help?” But you don’t seem to be interested in considering whether Kellogg’s itself is using specious reasoning. If winnowing out specious reasoning is what counts to you, why, precisely, do you not go after the arguments of Kellogg’s with the same gusto? You make a large effort to research and pick apart MAI’s arguments and evidence; why not Kellog’s too? You say the MAI press release isn’t clear about the origins of the dispute. If you’re really a “watchdog,” interested in winnowing out truth and justice and rights, use your research skills and find out.

    In the meantime, until Kellogg’s goes after Van der Valk (which, I’d wager, has far more resources to fight a legal dispute than the MAI), I’ll assume Kellogg’s argument is indeed specious, and that the lawsuit is exactly what it looks like: bullying.

  5. You wrote: “Does a clearly specious argument ever help?”
    It seems to me that MAI was trying to win in the court of public opinion. (You found this in a PRESS RELEASE for crying out loud!). It doesn’t matter if the legal argument fails if the general public won’t recognize it as specious. I suspect that the majority of cereal purchasers will accept the arguments in the press release without too much further thought. If MAI can paint Kellogg’s as a “Big Bad Wolf/Corporation”, then MAI wins (or at least can garner a little more leverage).

    Stated another way, sometimes, it is better to win the PR battle than the legal battle. Reminds me of the North Face v. South Butt case. (Admittedly the facts are distinguishable, but the tactics are comparable.)

  6. I can agree with the idea that the MAI are exaggerating their victimhood in this case, but it still seems like Kellog’s has no right to any sort of legal action. The law is there to protect Kellog’s IP, not to give Kellog’s claim over any sort of representational toucans. Toucan Sam™ is a household name that is not going to be confused with just any cartoon toucan.
    I have no experience in any sort of legal field. From my perspective it looks like you think Kellog’s might have a case based purely on strict interpretation of the law. However, it seems that they are abstracting the law to suit their own purposes beyond the original real-world intention of creating that law. Do you think Kellog’s case holds any water at all?

  7. It’s not even clear to me that Kellogg’s is alleging trademark infringement or is on its way to a trademark infringement lawsuit since MAI hasn’t made public this threatening letter. This press release may simply be in response to Kellogg’s §2(d) opposition to the registration of the MAI’s toucan graphic design for t-shirts. If so, MAI’s response is disproportionate to Kellogg’s efforts to protect its toucan trademark registrations. If all this is about is MAI’s trademark registration application for t-shirts, then MAI’s chairman’s statement that “You can’t trademark a bird, even if you’re really big” is ironic.

  8. lorq-

    You say: ” if you concede that the two images don’t look alike, then it follows that they are not in competition…”

    That is not what the law says. Trademarks are protected by classification. It is possible to protect identical trademarks as long as the classifications are not the same or similar. For instance, the slogan “Most pure gas known to man” should be able to be trademarked identically for Company A – gas station and for Company B – a restaurant that sells Hot Dogs and Baked Beans. They are not in competition. The classifications do not overlap and are not at all similar. There would be no confusion.

    You, however, make the incorrect leap to say that if the trademarks do not look alike the companies are not in competition. If they are engaging in the same or similar business they are definitely in competition. The closer the channels of trade the less similar the trademarks have to be in order for the holder of the first mark to prevail.

    You say: “ou don’t seem to be interested in considering whether Kellogg’s itself is using specious reasoning. If winnowing out specious reasoning is what counts to you, why, precisely, do you not go after the arguments of Kellogg’s with the same gusto?”

    First, the press release issued by MAI was so poor and illogically written that it is impossible to know what Kellogg’s argued. Second, where is Kellogg’s reasoning specious? They own the rights to Toucan Sam, which is a widely known character. If the channels of commerce overlap, which they do because of where MAI wants to protect their toucan, then an owner of the most famous toucan cartoon character in the world would seem to have at least some reason to question. Legally speaking they have a right to protest.

    You say: “You say the MAI press release isn’t clear about the origins of the dispute. If you’re really a “watchdog,” interested in winnowing out truth and justice and rights, use your research skills and find out.”

    No. Why don’t you find out! I did research and pointed out that they ARE in competition and that MAI was less than honest because they are competing, which is a fact you choose to ignore. I provided proof by way of the trademark application serial number. The fact that I wrote an article that YOU didn’t like or that didn’t cover what YOU thought it should is really a YOU problem.

    People like you irritate me enormously. You expect an article to be a thesis and treat every aspect of every issue. Newsflash! It is an ARTICLE. I pointed out what I wanted to point out, which was 100% correct. MAI is grand standing and using specious arguments to gain public favor. You seem to have adequately understood the commentary, so that means MISSION ACCOMPLISHED!

    -Gene

  9. Skails-

    You ask: “Do you think Kellog’s case holds any water at all?”

    Probably not. If I were to place a bet I would bet that they would lose a legal battle if it were fought to the end. This won’t be fought to the end one way or another though.

    The point of the article, which many seem to have missed or chosen to ignore, is that sometimes there are no parties wearing a white hat in a trademark dispute. Yes, there is a lot of corporate bullying relative to trademarks and that is a real problem. Here there is at least a shred (probably more than a shred) of legitimate grievance. So rather than MAI appropriately playing the PR game they chose to misrepresent and leave out critical facts, which in my mind makes them just as bad. They received terrible PR advice. They will likely win the PR battle, but winning for the wrong reasons and winning through misrepresentation and misdirection really bothers me.

    -Gene

  10. To those who say I should be a “watchdog,”

    If you believe winning for the wrong reasons and as a result of misrepresentation and misdirection is appropriate then how can you possible be anti-corporation? It would seem that your view of the world (i.e., lies, misrepresentation, misdirection and over-reaching is OK) should put you squarely in line with everything corporate America. Oh the hypocrisy of your positions!

  11. I’ll agree that the Redskins analogy is a bit too far. A better parallel would be the Buffalo Bills suing a Native American organization for the use of Buffalo that couldn’t reasonably be confused with their logo or mascot, which is also given attributes not present in the creature’s form in nature. We could argue over details, but I’d say the association of certain Native American tribes and Native Americans in general with Buffalo is in the same ballpark as Mayans and Toucans.

    You are correct in asserting that the MAL toucan is a cartoon, but I’m not sure I’d call it a character, since it has not been anthropomorphized in any way. Even if you do consider it to be a ‘character’ (which would mean they had poor word choice, not a poor argument), the characters aren’t anything alike. Toucan Sam is very much in the style of Saturday morning cartoons, and he wouldn’t particularly stand out amongst a standard fare of Looney Tunes or Hannah Barbara (in fact, the character was originally voiced by Mel Blanc). The toucan for the MAI logo doesn’t look to fit that niche, and wouldn’t be fit for being the mascot of even Malt-o-Meal or a side character of a young child’s favorite show.

    In regards to competition, I will agree that they both might make or license shirts and hats with toucans on them. Of course, if you make it a bit broader to ‘shirts and hat with tropical birds on them’, Jimmy Buffet is in ‘competition’ as well. But, realistically speaking, the demographics that would buy each of these wouldn’t have a lot of overlap, consumers wouldn’t reasonably be confused about them, and the products of one couldn’t really replace the others in any way other than the functional manner that all shirts and caps work regardless of what images are portrayed on them. So, while you can technically say they are in competition, they don’t seem to be in competition in any meaningful way.

    Regarding misrepresentation of the facts, you seem to be attributing to malice something that can be adequately be explained by stupidity. I don’t think it’d even be ‘stupidity’ here, just some flaws in getting out the message from the legal department to the PR department, so their press release isn’t perfect from a legalese standpoint. The worst label I see being appropriate for them is ‘amateurish.’

  12. Bobby-

    You say: “you seem to be attributing to malice something that can be adequately be explained by stupidity… The worst label I see being appropriate for them is ‘amateurish.’”

    Hard to argue with you here. Upon reading the press release, which makes very little sense, it seems they rushed it out and thought everyone would already be familiar with what was transpiring. The press release wreaked of haste. Very amateurish.

    Stupidity vs. malice? Maybe it is they just don’t understand trademark law, but it seems difficult to accept the statement that they are not in competition when they seek trademark protection that is quite in competition. Maybe a case of one hand not knowing what the other is doing, misunderstanding the law or misdirection. Who knows, but your points are well taken.

    Cheers.

  13. This case is vaguely reminiscent of Johnson & Johnson suing the Red Cross-Although that case was a lot more cut and dry than Kellogg’s case against MAI for a number of reasons. Either way it seems that the corporation is missing a few tricks. A little cooperation and everyone can win. Kellogg’s could get more interest in their product by putting the MAI Toucan logo on a few boxes of cereal and putting a web link for MAI on the back. The free press coverage they would get (basically free ads) would outweigh any losses. People would definitely associate the MAI toucan with fruit loops as well as Toucan Sam-not that they do so now-and I am not convinced that that is a bad thing for Kellogg’s business. It would seem to grow the brand and make people feel good about buying Fruit Loops. Maybe I’m wrong…

  14. Guiness (famous makers of Irish Stout) had a cartoon logo Toucan for approx. 60 yrs!!

    http://www.google.co.uk/search?q=guiness+toucan&hl=en&biw=1078&bih=861&prmd=ivns&tbm=isch&tbo=u&source=univ&sa=X&ei=1J9iTomsFIrC8QOK7_GUCg&ved=0CEsQsAQ

    I think these IP lawyers are ruining our lives.
    Apple, Microsoft now Kellogs.
    Creativity is stifled, prices are hiked, customers disadvantaged.

    Ambulance chasers? Hell Yes!!

  15. Gene, I’ve been enjoying your newsletter/blog for nearly ten years now. But I think the main reason why most commentators are challenging your Toucan “article,” is because it comes across so biased. It reads like you’re a lawyer trying to gain favor with large corporations, so you’re just looking for reasons to attack an underdog like MAI for daring to fight back against a corporate behemoth like the Kellogg Company (and the surprisingly combative tone of your responses to criticisms also undermines your article). You spend an inordinate amount of effort attacking the quality of MAI’s press release vs the quality of Kellogg’s claims of owning exclusive rights to all images of a Central American bird.

    When you market yourself as a “watchdog,” you should behave like one. A watchdog should be dedicated to finding and exposing illegal or unethical conduct. Yet, your article doesn’t include any information about Kellogg’s arguably unethical efforts to prevent anyone else from using images of toucans. Even a quick search of the TTAB’s online records shows that Kellogg has gone after scores of other toucan users, and I would bet that they’ve issued hundreds, if not thousands, of very threatening cease-and-desist letters.

    So instead of attacking the accused, why didn’t you investigate MAI’s claims to see if there was enough evidence to convince you that Kellogg is, as it appears, an over zealous trademark bully? If MAI was a young boy beat up at a party by a bunch of drunken football players, would you be so obsessed and critical of the boy’s press release, or the conduct of the football players?

    Perhaps worse yet, you give no attention (respect) to what MAI is about. According to their website:

    “The objectives of the Maya Archaeology Initiative are to provide the means to protect and improve northern Guatemala through a range of diverse programs including: 1) To provide educational opportunities and training in Mayan history and culture for Guatemalan young people.; 2) To encourage conservation of the Peten rainforest’s animals, plants, and natural resources.; 3) To support research in new areas of Maya archaeology, including pressing for protection of Holmul, Cival and nearby sites; 4) To protect cultural and historical resources, and to make them available to the public through digital means where possible; 5) To help communities better their standards of living by supporting sustainable tourism and promotion of traditional arts and handicrafts.”

    I never heard of MAI before your article, but it sure appears to be a pretty worthwhile organization.

    Compare this to Kellogg: “With 2010 sales of nearly $12 billion, Kellogg Company is the world’s leading producer of cereal and a leading producer of convenience foods, including cookies, crackers, toaster pastries, cereal bars, fruit-flavored snacks, frozen waffles and veggie foods.” I would wager that most of Kellogg’s products are (or were before succumbing to public and govt pressure), sugar-laden products.

    I haven’t investigated Kellogg’s, but according to Wikipedia.org, they have a history of making false claims. In fact, on June 3, 2010, the Federal Trade Commission found that Kellogg’s was making unsubstantiated and misleading claims about their cereal products. FTC Chairman Jon Leibowitz stated that “We expect more from a great American company than making dubious claims—not once, but twice—that its cereals improve children’s health…”

    I would argue that a giant corporation that would go as far as to mislead consumers about its products, especially food products consumed by young CHILDREN, would certainly be capable, if not expected, to make misleading claims about its so-called trademarks. This is especially believable to me since there are few, if any, real legal consequences for trademark bullying.

    At a minimum, you should have better reviewed Kellogg’s claims against MAI (and others) before so strongly criticizing MAI’s efforts to inform consumers about Kellogg’s controversial efforts to monopolize all images of toucans. Perhaps you would have seen this differently if Kellogg’s was claiming to own all images of attorneys?

    Scott Smith
    scott@bizstarz.com

  16. PS Looks like Pyramid AND a Toucan to me!

  17. PPS Sorry for all the PS’s will stop after this.
    I have emailed Diageo, Guiness owners.

    Kellogs taking action against Maya Archaeology Initiative for use of Toucan Logo!!

    http://ipwatchdog.com/2011/09/02/kelloggs-toucan-sam-asserted-against-archaeology-initiative/id=18946/#comment-23405

    I think someone in your legal dept. should have words!
    PR plus for you, help for the little guy.

    Regards
    Gavin McKenzie

  18. gvnmcknz-

    Are you even familiar with what the term “ambulance chaser” refers to? Obviously not.

    As far as IP protection stifling creativity, that is laughably ignorant.

    -Gene

  19. Scott-

    My article is trying to gain favor with a corporation? Really? For what purpose exactly? I am a patent attorney, not a trademark attorney, and I don’t do any trademark work any more at all.

    Thanks for the lecture on what it means to be a watchdog. Obviously you aren’t paying much attention though. If you really read my writings for 10 years now you would know that I call out hypocrisy whenever I see it. MAI has misrepresented and mislead, which is something that I ALWAYS point out and call out.

    As for you saying I should be a watchdog… perhaps you should re-read the article without your obvious bias blinding you. I guess to you a watchdog is one who always takes sides with the small player at all costs, even when they misrepresent and mislead. What a sad statement that is really.

    “but according to Wikipedia.org…” Oh my. Is that the best you can do? Citing Wikipedia as authoritative is quite humorous indeed!

  20. GENE: My article is trying to gain favor with a corporation? Really? For what purpose exactly? I am a patent attorney, not a trademark attorney, and I don’t do any trademark work any more at all.

    SCOTT: Sorry Gene. I must’ve missed the announcement that large corporations no longer need patent attorneys. I guess I should be glad that you don’t do trademark work anymore, but I think I can see why.

    GENE: Thanks for the lecture on what it means to be a watchdog. Obviously you aren’t paying much attention though. If you really read my writings for 10 years now you would know that I call out hypocrisy whenever I see it. MAI has misrepresented and mislead, which is something that I ALWAYS point out and call out.

    SCOTT: You have amazingly thin skin and emotionally-charged reactions for a seasoned attorney. Whether or not MAI inartfully worded their press release isn’t the real issue here. It’s whether or not deep-pocketed corporations are bullying small co’s and individuals out of their IP rights. Your article didn’t even hint that you looked into Kellogg’s long history of attacking others for using images of toucans, and I think mostly for products and services totally unrelated to food products that I don’t think anyone would confuse for “health food.” For instance, Kellogg’s legal attacks against Toucan Golf, Inc. Have you even read Kellogg’s claims against MAI, or Kellogg’s claims against other toucan users? Did you even bother to contact MAI or Kellogg before posting your article?

    GENE: As for you saying I should be a watchdog… perhaps you should re-read the article without your obvious bias blinding you. I guess to you a watchdog is one who always takes sides with the small player at all costs, even when they misrepresent and mislead. What a sad statement that is really.

    SCOTT: How low can you go? You nastily respond to everyone that questions your article, even though they’re your readers. Nice marketing strategy. And watchdogs tend to look out for those who for whatever reasons, can’t do so themselves. So yes, I, and apparently many others, think your article was biased and not well researched. And, yes, I think any time a large corporation claims exclusive rights to common or generic terms against someone who likely can’t afford to fight back, that their claims should be scrutinized. The damage corporate bullies can create is tremendous, especially when so-called watchdogs fail to actually be watchdogs.

    GENE: “but according to Wikipedia.org…” Oh my. Is that the best you can do? Citing Wikipedia as authoritative is quite humorous indeed!

    SCOTT: Actually, and as you should know, dictionaries and sources such as Wikipedia are often cited in IP cases, particularly in trademark cases. Noticeably, though you felt it appropriate to mock my reference to Wikipedia, you, an attorney, weren’t able to show that it wasn’t accurate. Besides, I’m not an attorney. I’m an entrepreneur who happens to know a lot about IP bullies (and their business-killing, money-grubbing attorneys). But you are an attorney, and I don’t recall that your article contained any legal citations or real legal analysis. In fact, it was written as if you have a beef with MAI and were doing all you could to undermine their credibility. But as is obvious from the reactions of your readers, your bias was obvious and ended up undermining your credibility, not MAI’s. And I’m sure these reader responses are only a tip of the iceberg. Most probably didn’t want to bother to comment, especially after seeing how nastily you have been responding.

  21. As far as IP protection stifling creativity…,

    Gene – that is a parroted phrase…

    Selling Point – No Kool-Aid is made that harms the environment or disturbs the habitat of any mammels, birds, or reptiles.

    Drink up with a clear con-science.

  22. BD-

    What are you talking about?

    -Gene

  23. Scott, the truth is you don’t like what I wrote and you jumped to conclusions that were not based on any facts, which apparently you feel is fine for comments to an article. That type of commenting is not acceptable on IPWatchdog.com, which you would know if you had been reading my work for 10 years. Truth is you probably have read a few articles that you agreed with and just assumed that I agreed with every position you have.

    Sadly, right out of the box you questioned my motives and attempted to impugn my character with your suppositions that were not based on fact. Then you have the audacity to continue to question me? The nerve you have is nearly beyond words. Your vendetta against Entrepreneur Media, Inc. must have compromised your ability to rationally think. Just because you think Entrepreneur Media, Inc. has wronged you doesn’t mean that every small corporation is correct. Whenever someone in the IP world misrepresents, misdirects and misleads in order to achieve an end goal look for me to be there to point it out. MAI did those things, it really isn’t more complicated than that.

    Your type of comment first reality be damned comments are not appropriate on IPWatchdog.com. Disagreeing is fine, but in your first comment you went after me, my motives and my character and that is unacceptable. It is likewise unacceptable when a comment nakedly goes after others who comment here in a similar way, and I don’t tolerate uncorroborated conspiracy theories (i.e., Judge or Official X is in the tank for Y). Naked statements are conclusions and conclusions without fact border on defamatory on their face. Commenting on IPWatchdog.com is not a right, and I won’t allow this forum to be taken down by any one person. Disagree with me if you want, but be factual and intellectually honest. When you are losing the debate further going after someone personally is inappropriate.

    Now to address your particular points from your last comment…

    You say: “I must’ve missed the announcement that large corporations no longer need patent attorneys.”

    So a cereal company is a big patent filer, huh? Enormous multinational corporations also like sending work to firms with 8 attorneys, huh? Please, you are wrong and you either know it or should know it.

    You say: “amazingly thin skin and emotionally-charged reactions for a seasoned attorney.”

    Not at all. I will point out that this response by you was in reference to me substantively pointing out that you were incorrect. It is the last refuge of a beaten man to resort to personal attacks in a debate. I don’t have thin skin at all. I just point out hypocrisy and erroneous statements whenever I see them, and THAT is what makes me a watchdog. Your previous comment was full of hypocrisy and error, making it quite easy to point out where you are wrong. This latest comment shows all the signs of defeat in debate because you are now attacking me rather than my position. An admission that I am correct and you are wrong.

    You say: ” You nastily respond to everyone that questions your article, even though they’re your readers. Nice marketing strategy. And watchdogs tend to look out for those who for whatever reasons, can’t do so themselves.”

    First, my marketing strategies are working beyond belief, thank you for your concern. Readership continues to grow, likely because when I see hypocrisy and those who prefer to misrepresent and mislead I call them out. I do that with politicians, large corporations and small corporations.

    As far as watchdogs tending to stand up for those who can’t stand up for themselves, that is fine, but never what I have positioned myself as. If you want to be an apologist, which is what you are, for the little guy whether they are right, wrong, misrepresenting or truthful that is for you to decide. I prefer to remain intellectually honest. In my opinion the ends do not justify the means, which you apparently would disagree with as long as the ends work to assist a small corporation over a large corporation.

    You say: “you felt it appropriate to mock my reference to Wikipedia, you, an attorney, weren’t able to show that it wasn’t accurate.”

    Wikipedia is full of inaccuracies, which is what you get when you allow anyone with a computer to edit a “dictionary,” as you call it. Wikipedia is really a biased encyclopedia. All you need is a citation that says what you write, which is easy enough to find for anything given the bias of the media and so many Internet sources.

    You say: “But you are an attorney, and I don’t recall that your article contained any legal citations or real legal analysis.”

    What I write is overwhelmingly commentary in the style of op-ed articles, which again you would know if you REALLY have read my work for the last 10 years. When was the last time you saw an op-ed with legal citation?

    You say: “I’m sure these reader responses are only a tip of the iceberg. Most probably didn’t want to bother to comment, especially after seeing how nastily you have been responding.”

    This shows just how little you understand about the Internet and blogging. Those who agree with me rarely comment, and those who disagree are all too eager to comment. Like you, they think they can say whatever they want without ever being called out and taken to task. Well, that is not how IPWatchdog.com operates, which again you would know if you have been reading my work for the last 10 years.

  24. Sorry Gene – I was a bit cryptic.

    The comment references the fairly typical habit of those who have imbibed the Kool-Aid to merely repeat dogma that they have been trained to repeat by rote, without really thinking about the position themselves.

    It is truly amazing the lemming-like behavior and lack of critical thinking that is done by these no-doubt intelligent people.

    I threw a little play on words in there with the “parrot” reference.

    And of course, I wanted to add the group-think benefit of ecology in noting that my delectable concoctions are animal friendly (and I should add that no Ozone was depleted in the making of the Kool-AId).

    Lastly, I wanted to throw a bone (as it were) with the play on “Con” and “science” that apears to affect the “conscience” of so many imbibers.

    Just a little fun for a Sunday morning. Keep up the good work.

  25. BD-

    Thanks for the explanation. Perhaps if it weren’t Sunday morning I wouldn’t have needed a blow by blow description, and I wouldn’t have missed the obvious “parrot” reference.

    Cheers.

    -Gene

  26. Wow, for such a simple and straightforward analysis, this blog entry touched a lot of nerves! I still can’t figure out what could have been so controversial in the original entry!

    1st paragraph – a bald statement that Kellogg’s is threatening legal action against MAI for copyright infringement against their Toucan Sam character. 2nd paragraph – some comments about the scare tactics trademark holders use against competitors. Can’t argue with any of that.

    3rd and 4th paragraphs – analysis of comments on the trademark dispute made by a globally recognized expert on Maya archeology and culture, not a globally recognized expert on trademark disputes. The statement itself is probably worthy of the attention that should be paid the views of a world-famous 18-year-old actress on the use of anti-depressants for treating illnesses, but again, nothing that isn’t pretty self-evident.

    Then a brief analysis of three arguments made in a very small paragraph in a press release from MAI (see http://mayaarchaeology.org/index.php?option=com_content&view=article&id=152:kelloggs-threatens-nonprofit-on-use-of-toucan-image-in-logo&catid=43:news&Itemid=220 ), the only part of the release that mentioned the possibility of legal arguments that MAI might use to defend their logo. The paragraph reads:
    “In a detailed response to the cereal giant, Maya Initiative legal counsel Sarah Mott explained that the toucan in MAI’s logo looks nothing like Kellogg’s cartoon character and said the two entities are not in competition. MAI’s logo is based upon a realistic toucan native to Mesoamerica, while Kellogg’s Toucan Sam is a cartoon character with colors that represent Froot Loops’ food coloring.”
    The arguments represented in the blog entry are that:
    1) The toucans don’t look anything alike.
    2) The two companies are not in competition.
    3) That MAI’s logo is realistic and Kellogg’s is a cartoon.
    That seems a fair characterization of the arguments, although 3 may have been stated slightly stronger in the blog entry than the press release.

    And the responses to these arguments?
    1) The toucans don’t look anything alike? Possibly true. Mr. Quinn is willing to concede this point.
    2) Companies are not in competition? False. MAI is trademarking a toucan logo to use for selling clothing, Kellogg’s has trademarked a toucan logo for selling clothing. Both will be selling clothing in the same geographic area. Companies are in competition.
    3) MAI’s toucan is realistic? False. Both of these are cartoon images.
    As far as the bare facts go, I have to agree with the author on all three of these points. The toucans don’t look much alike, but the companies are in competition selling clothing with cartoon toucans on them.

    And finally, analysis on another quote in the press release which (in my opinion) doesn’t appear to be related to the trademark dispute, but to the portrayal of Mayan culture in the Froot Loops Adventure series. Apparently this is in reference to another point on which Kellogg’s is pressing the similarity of Toucan Sam and the MAI logo (not discussed in the blog entry), which is that both are associated with Mayan imagery. The quote appears to be taken out of context in the press release, and still more out of context in this blog entry. However, the question that it is used to lead into seems pretty straightforward standing alone – should a trademark holder defend its property rights against even non-profit and beneficial organizations? The final conclusion, that MAI is making specious legal arguments to defend against charges of infringement, while trying to make the PR case that it is the victim of abusive trademark prosecution, does seem to follow.

    The questions of what the companies do, who they do it for, or how much they make on their activites seem to be to be completely irrelevant in a trademark dispute. Shouldn’t the discussion focus on whether the trademarks are confusingly similar and whether the products marked with the trademarks are in competition?

  27. troll blog post?

  28. Can we assume that a really bright IP lawyer such as yourself actually has expertise you are sharing with the world? Or that you are aware of Kellogg’s spectacularly unsuccessful record in making this claim in the past? You must be since, as a keen legal mind, you have actually done some research. That must be the case, since you are essentially parroting the same arguments Kellogg made in 2003 in Kellogg v Toucan Golf. Does it follow, then, that you are also aware that the 6th Circuit Court of Appeals rejected that claim and said it was, essentially, legal gibberish? Maybe, but it seems more likely you are just another clueless blogger hoping that if you scream loud enough, what you say will become true. But then again, maybe there is a tiny grain of legal insight here. Maybe you are building the framework of an argument that will lead someday to an appointment to the Tea Party slot on the Supreme Court, a perch from which you could abolish stare decisis once and for all. Hmm…

  29. Pete Xitco-

    Wow! What a truly clueless comment! Thanks for the laugh though. I nearly chucked out loud when I read that you think I am an uninformed blogger without any knowledge or experience in the area. Obviously you don’t know me and you chose not to do any research yourself.

    Since you seem to be a self proclaimed genius it should be easy for you to understand that failure to make a successful claim in the past doesn’t mean one can’t or won’t make a successful claim in the future. Sad that I have to say that. I is self evident to those with a clue.

    As for this article, perhaps you should RE-READ the article. You want to make this about Kellogg’s, but the article is about the lies and misrepresentations of MAI. Whether Kellogg’s has made frivolous claims in the past has absolutely nothing to do with the FACT that MAI has misrepresented what is going on here in this case.

    As for your anti Tea Party comments, your ignorance shows. People like YOU who profess to be enlighted and open minded are nothing more than myopic, small minded haters. Perhaps you should look to your side of the aisle before casting the Tea Party in a bad light. MSNBC and other ultra liberal outlets are the ones expousing inflamatory language and ignore facts all in an effort to make erroneous points.

    Thanks again for the laugh.

    -Gene

  30. Wow! I got a good chuckle out of how loud you squealed while getting nailed on the Tea Party rap. Bullseye!

    In RE-READING (sic) your clueless article, you identify not a single misrepresentation by MAI. All you say is you didn’t really understand their press release. That’s different, Gene. RE-READ (sic) it and see if you can find one. You are just another clueless blogger with a two-bit megaphone and a surfeit of venom for those who identify your incompetence.

    You don’t do research. If you did, you would be aware that it is a violation of law in Guatemala, in Mexico, and in many other countries to appropriate religous symbols, such as a Maya Temple, for commercial use (as a hot shot legal mind, you surely are aware of Mexico v Starbucks over use of Aztec symbols). It is also a violation of a United Nations mandate to use indigenous icons in a defamatory way. I suppose in Melbourne, Florida, it isn’t defamatory to sell cereal using an Evil Witch Doctor, posing as a Maya priest in Kellogg’s commercial, or a yellow-skinned, slanty-eyed fish called the Greedy Froot Loops Master in a Buddhist temple, or the Greedy Froot Loops Pharaoh, all demeaning to other cultures. On board with Kellogg’s on those?

    Then how about the Greedy Rabbi in the Synagogue stealing Froot Loops from the white kids? Evil Pope in the Vatican? Or, Tea-Party-faithful forbid, the Pedophile Froot Loops Pentecostalist?

    Is that what they teach at Franklin Pierce Law School, which we all recognize as one of the finest law schools Rindge, New Hampshire has to offer (if in fact there actually is a law school there, since Franklin Pierce does not list law on their website as an area in which they offer graduate degrees).

    Judging from your picture, I’m guessing there are truckloads of Froot Loops in your life.

    Thank you for the laugh.

  31. Pete-

    Are you for real? Do you understand anything about trademarks and what it means to be seeking a registration in a particular class? They are seeking protection for the name for T-shirts and hats, yet they say that as an archeaology group they are not in the same business. Please. Get a clue.

    As far as your other ranting about international law, thanks for the lecture. Too bad it is completely irrelevant in the U.S. Perhaps you missed it, but the article I wrote dealt with U.S. law.

    As far as research… perhaps you should do some yourself. There never has been a Franklin Pierce Law School. The school in Rindge, NH has never had an affiliation with the law school I went to. Of course, had you done your research you would know that, but you are just one of those ignorant individuals who has more time on their hands than they know what to do with. You think you know everything about everything, but you obviously don’t know anything about U.S. trademark law. You also don’t seem to understand that the law of Mexico and Guatemala are not applicable in the U.S.

    By the way, the law school I went to is known throughout the world for excellence in intellectual property. The fact that you seem unaware of that suggests you are not to be taken seriously with respect to any substantive intellectual property law concepts.

    Finally, the last refuge of the defeated is to engage in personal attacks. So you took the opportunity to attack me on my appearance. That clearly and obviously means that you concede defeat. For that I thank you for your consession and I thank you for the comical relief you have brought to my day.

    -Gene

  32. Gene:

    Does your law firm actually allow you to make such a fool of yourself?

    I’m happy to accept some of your arguments:
    – Franklin Pierce is indeed the absolute Pinnacle of Legal Knowledge. No question. You nailed that one.
    – Melbourne, Florida is magnet for really the creme de la creme of the legal fraternity. Everyone knows that.
    – Guatemalan and Mexican law do not apply in the U.S. Yes. But you miss the point. Let me spell it out more s…l…o…w…l…y. Listen carefully. Guatemalan and Mexican laws do apply in those countries, and companies that violate the statutes in the countries in which they operate are subject to those laws.Also, the U.S. is a signee of the U.N. accords, so there is no question that is applicable law.

    By the way, before you get all lathered up, concession is misspelled in your frothy missive. And this isn’t one. In reviewing this thread, you have engaged in ad hominem attacks against everyone critical of your position. Love your loopy logic. You are every opposing counsel’s delight.

    Even going to let you have the last word.

  33. Gene, your attitude toward Mexican and Guatemalan law makes you the perfect caricature of the ‘Ugly American’ so widely loved throughout the world. Having traveled extensively the last 35 years in Central and South America you absolutely fit the stereotype people there have of Americans. Your position defending Kelloggs in this dispute forcing a small entity (whose sole cause seems rather noble to me) to expend attorney fees fending off a typical American corporate conglomerate makes you a rather appropriate symbol of this country’s legal profession and a perfect example of why they are generally despised. I say this with a great deal of sadness since I have been a lawyer in Florida since 1976. Tom

  34. tom stephan-

    So I am an ugly American because I have the audacity to say that Mexican law and Guatemalan law have no effect in the United States? Your indignation is ridiculous. It is a truism to say that the law of foreign jurisdictions doesn’t matter in the United States.

    As an attorney you should have picked up the fact that I was not defending Kellogg’s. I just pointed out the misrepresentations of MAI, which you seem to be comfortable with. Perhaps MAI should have considered whether filing a trademark application in a class of goods would result in the need for legal fees. Everyone, large or small, has a right to seek redress. The fact that you don’t understand that truth suggests you aren’t a very good attorney.

    -Gene

  35. Gene, your responses to any sort of criticism continues to be very ugly, and is far below what one would expect from a seasoned attorney and blogger. You’ve taken the “joy” and learning out of the back and forth banter that your blog should be encouraging. It’s obvious that no amount of feedback from YOUR readers will cause you to reconsider your strikingly harsh criticism of MAI.

    You, not your readers, started this drama by writing such a scathing article about MAI (and with limited, if any, research). But you act outraged and try to demonize anyone who dares to challenge your criticisms of MAI. You apparently fail to notice that no one is saying MAI is all good. What your readers are consistently trying to point out, is that your article was so surprisingly against MAI, that it comes across as disturbingly biased. And whenever someone points out the flaws in Kellogg’s or their legal claims, you completely ignore those points, and instead fire back with the viciousness of an angry old man who should always wait 24hrs before responding.

    Several other legal blogs, as well as large media outlets such as Fox News, have covered the Kellogg’s vs MAI battle. But none have tried so hard to vilify MAI. Most have centered on the obvious: how could MAI’s non-cartoon toucan logo be an infringement of Kellogg’s very cartoonish toucan?

    You’re laser focused on the fact the MAI’s trademark is for clothing products. So what? I’m not an attorney, but isn’t their trademark for a highly stylized mark that’s intended to protect their specific logo, and has nothing to do with trademarking the actual word “toucan” or the use of “toucan” images on clothing by Kellogg’s or anyone else?

    You don’t have to be an attorney to know that millions of clothing products use toucan images on them (and should be allowed to). For example, there are currently “410 Toucan T-shirts designs available on 6,100 products” available for sale on CafePress.com. Using your logic, all of these that are not produced or licensed by Kellogg’s (if any), are infringing upon Kellogg’s rights. Or at a minimum, it would be okay with you if Kellogg’s sent them all threatening cease-and-desist letters, no matter how non-cartoon or Toucan Sam-like their designs are.

    You also failed to mention anything about Kellogg’s history of bullying much smaller companies over use of toucan images. I’m not suggesting that none of Kellogg’s cases had merit, but did you bother to search the TTAB’s online database for Kellogg’s “toucan” cases? I did, and there were 53 of them, including one in 2007 against “Toucan Kids” for clothing products. Of course, it doesn’t matter to a trademark bully such as Kellogg’s, that, “The assigned trademark examining attorney…reviewed the referenced application and …determined the following: …no similar registered or pending mark has been found that would bar registration…” The same as what the examining attorney determined for MAI’s trademark application. However, it appears that Kellogg’s legal threats against Toucan Kids worked as planned, because even though the trademark office found no similar marks, Toucan Kids abandoned their trademark application soon after Kellogg’s launched its well-oiled legal attack.

    The bottom line is, you would have served yourself, and your readers, much better if you had simply admitted that you were overly harsh on MAI, and apologized. Instead, you rudely attack and alienate people who want to read and support your blog (and possibly, your legal services).

    And you don’t need to respond by telling me how ignorant I am, and how superior you are. I’m just hoping you’ll think twice before again unfairly attacking the apparent victim of a trademark bully. Corporate giants like Kellogg’s don’t need your help. Their numerous advantages allow them to win virtually all of their trademark cases by default (unless of course, they’re up against an equally-resourced opponent). It’s far to risky and expensive for most small companies to even think about trying to fight back against a multi-billion dollar corporation like Kellogg’s. In fact, Kellogg’s probably spends far more per year on attorneys’ fees, than MAI’s entire annual budget!

  36. Patent Trolls causes Trillions $ worth of losses.
    Not just in trademarks but in our daily lives.
    http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack
    gvnmcknz

  37. Times article on trademark bullying…

    “In another case, from last August, the Maya Archaeology Initiative fought claims by Kellogg that a bird depicted in the organization’s logo is too similar to Toucan Sam, the bird on the Froot Loops cereal box. The two sides have since reached an agreement allowing the Mayan group to use its mark.