Toucans vs. Kellogg's

9/28/95 - For General Release

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 (which includes sound recordings) to protect their name. The band was stunned when opposition to their application was filed by the Kellogg Company, which claims infringement on their "Toucan Sam" trademark (in class 30, which includes cereal-derived food products) as well as damages caused by the band's name!

Although the Toucans have repeatedly stated that they will never oppose the use Kellogg's registered marks in any manner, including on sound recordings, the Kellogg Company continues to ignore the Toucans' settlement proposals, while demanding the withdrawal of the Toucans' trademark application for the name of their band!

The Kellogg Company has even gone so far as to claim trademark rights for the word "Toucan", as if they invented the bird! They claim to have confidential documents which relate to Toucan Sam and the word "Toucan", but will not provide those documents to be examined except under a highly restrictive protective order. The Toucans are currently negotiating to receive these "top secret" documents.

Meanwhile, other trademark issues have been in the news lately.

Hormel Foods Corp. recently sued Jim Henson Productions over the use of a large pig character named Spa'am, featured in an upcoming Muppet movie. But U.S. District Judge Kimba Wood struck down the suit, saying that it was unlikely that anyone would confuse the two. ``SPAM is a luncheon meat. SPA'AM is the character of a wild boar in a Muppet motion picture. One might think that more need not be said."

A similar case involving a suit brought by Lexis Legal Research against Toyota, the makers of the Lexus automobile was resolved when a judge threw the suit out of court, ruling that "it is highly unlikely that a person would mistake doing legal research for driving a car."

Kellogg's is going out of their way, and against prevailing legal opinion, to assert that confusion is likely to exist between their breakfast cereal and a musical group. Interestingly enough, they see no such conflict between their new breakfast cereal, Temptations, and the musical group of the same name.

This case has moved far beyond just a simple issue of trademark use. After months of fruitless negotiations with Kellogg's, the Toucans feel that this legal action is nothing less than a direct threat to individual creative rights.

For more information about the Toucans and this legal action, please contact us at

To contact Kellogg's attorneys about this legal matter, email Jeffrey Kaufman at,
or call the Kellogg Company directly at 1-800-962-1413. Your calls and letters really do help!
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