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
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".
[0] https://storage.courtlistener.com/recap/gov.uscourts.ohnd.31...
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.
No, speaking on someone else's behalf, as lawyers are obligate to do is not lying. They are representing their client's position.
You also cannot "lie" about an opinion about what might confuse other people.
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.
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.
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.
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.
> 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.
[0] https://www.internetandtechnologylaw.com/bad-spaniels-iii-pa...
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.
> 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.
[0] https://www.ca4.uscourts.gov/Opinions/Published/062267.P.pdf
[1] https://www.supremecourt.gov/opinions/22pdf/22-148_3e04.pdf
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.
[1] https://www.uspto.gov/ip-policy/trademark-policy/well-known-...