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.
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 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.
> 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.
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.
How is a 15M lawsuit ever reasonable in a case like this?
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.
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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.
Trademark, not copyright. Legally they are very different.
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.
Go find a picture of the truck.
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
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> Do they have "leggo my eggo" itself trademarked?
As a matter of fact, they do:
https://tsdr.uspto.gov/#caseNumber=77021301&caseType=SERIAL_...
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.
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I think Lego should sue Kellogs
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It's US law.
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.
this isnt a great law though.
a non competing pun ahould have similar carve outs to fair use, to save both the trademark owner, jokester, and courts a bunch of time and money.
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.
Not relevant to those who have to act on the law as it is today.
Did Kellogg actual win according to this supposed law you cite? Did they prove that their trademark was used?
Or are you blindly guessing?
The trial is scheduled for the future. It sounds like you are blindly guessing about the case, and pretty unfamiliar with the law. Heres the case details: https://www.courtlistener.com/docket/70447787/kellogg-north-...
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.
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> 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.
Has any court ever ruled that a trademark was abandoned, merely on the grounds that its owners didn't try to prosecute a borderline infringement case?
This is a dilution not abandonment issue.
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.
It’s a bit of a catch 22
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