Toucans Deposition Update II

Recap: The Toucans, a Seattle-based steel drum band who have been playing in the Northwest for close to a decade, applied for a federal trademark in class 9 to protect their name. The band was stunned when opposition to their application was filed by the Kellogg Company, which claims infringment on their 'toucan sam' trademark (in class 30, cereal-derived food products), as well as damages caused by the band's name!

During the week of April 3, various members of the Toucans were questioned at length by Neil D. Greenstein (one of Kellogg's hired lawyers at Oblon, Spivak, McClelland, Maier & Neustadt). Listening in on the depositions by speakerphone was Jeffrey Kaufman (lead counsel in Arlington, VA), who was also apparently prompting Mr. Greenstein via long-distance computer hook-up.

The purpose of these depositions was ostensibly to discover information relevant to the use and registerability of the band's name "Toucans". However, the lines of questioning pursued by Mr. Greenstein were often, in the opinion of the band and their counsel, tiresome and petty, irrelevant, harassing, and even sexist. Here are some of the deposition highlights:

(all quotes accurately paraphrased)

Neil Greenstein: (referring to the often humorous liner notes of the Toucan's album 'Socanut') "It says here, 'send in $3 and you will receive top-level authorization to use the Toucans Secret Handshake.' What is the Toucans Secret Handshake?"

Rob Witmer: "Well, it's a secret. But if you send in $3, I might be able to tell you."

Pressed further, Mr. Witmer admitted that he didn't even know what it was, a testament to the handshake's secrecy.

Referring to another of the band's numerous jokes, Mr. Greenstein asked: "Have you ever heard of the phrase 'Marketable Tone Generation Systems'?"

Pete R.: "Yes, it is a fictitious corporation name."
NG: "For what purpose was this name created?"
PR: "For the purposes of comedy, Mr. Greenstein."
NG: "Can you tell me how that name is comedic?"

If you have to ask...

Other questions asked by Mr. Greenstein (referring again to the liner notes of Toucans albums) struck the Toucans as being particularly asinine as well.

- "What are the 'Super Toucan Powers'?"
- "Did Andy ever get his 'Peruvian Nose Job'?"
- Mr. Greenstein quoted the line 'Jason wears a funny hat.', then asked, "What does this mean?"

Less humorously, during the depositions, a female friend of the Toucans previously identified by her first and last name on several occasions was consistently referred to by Mr. Greenstein by her first name only, even though all other individuals were referred to by last name. Furthermore, when one of the band members indicated that this person was present at several Toucans performances, Mr. Greenstein followed up by asking, "Is she a mascot or a cheerleader?"

On a more sinister note, band member Pete R. was subpoenaed to provide all documents on his computer, both business and personal, which referred in any way to the Toucans or to the Kellogg Company. Our lawyers characterize this request as oppressive and harassing, and have referred to it as indicative of Kellogg's "fishing expedition". Regardless of its questionable relevance, this subpoena clearly violates several privacy rights, and raises the question, "How far will the Kellogg Company go?"

You can help the Toucans! Please write to the Kellogg Company with your opinion about this matter! (Attn: David Herdman, The Kellogg Company, 1 Kellogg Square, Battle Creek, MI 49016-3599) You can call by phone (Corporate Affairs Division, 1-800-962-1413), or email Kellogg's hired lawyers (

Send the Toucans a note, too! We'd love to hear your reactions about this case! ( More information about this case is available, too.

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