Trademark Attorney Morris Turek

Morris E. Turek

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December 7, 2009 – A Special (K) Day for Kellogg’s

As many of you already know from previous postings, I browse through the records of the Trademark Trial and Appeal Board nearly every weekend to see what’s happening in the exciting world of trademark oppositions (what, you don’t spend your Sunday mornings doing the same thing?).   Well, my research today revealed that the well-known Kellogg company filed four oppositions in a single day (December 7, 2009).  Wow!  That is incredible!  Someone at Kellogg should call the Guinness folks to see if a world record can be certified!

Anyway, the first opposition was filed against a trademark application for the mark NUTRA KIST (Serial No. 77298871).  The dozens of food and beverage items listed in the application specifically include cereal and granola bars, which are the products for which Kellogg is most known by the general consuming public.  In the opposition, Kellogg cited ownership of its registered NUTRI-GRAIN marks, as well as its various KELLOGG’S, SPECIAL K, and the following stylized K mark that you see all over its products:

K

Although I can at least recognize the vague similarity between NUTRI-GRAIN and NUTRA KIST, I have no idea why Kellogg believes that NUTRA KIST is likely to cause confusion with KELLOGG, SPECIAL K, and the stylized K marks.  Maybe Kellogg is on a monopolistic mission to stop all food and beverage manufacturers from using the letter “K” in connection with their products.  Soon, Campbell’s is going to have to pay Kellogg a royalty to use the letter in its chicken alphabet soup and be obligated to stick a disclaimer on its label stating “The letter K is used with the permission of Kellogg.”

Kellogg’s second opposition was filed against an application (Serial No. 77467721) owned by Loftex USA for the following mark, which is for bath and beach towels:

Sun Seen

I guess it could be c0nfused with the stylized sun shown below that Kellogg uses on its Raisin Bran cereal:

K Sun

Well, that is if you think all suns with smiley faces look the same and also believe beach towels are related to breakfast foods.  Clearly, Kellogg doesn’t have a lot of faith in the intelligence of the American public since it apparently believes that we will all be hopelessly confused.  Good thing for Loftex that the standard for trademark infringement is  “likelihood of confusion” and not “infinitesimal chance of confusion.”

Kellogg’s third opposition was filed against an application owned by the Save-a-Lot grocery store chain for the phrase SMART SELECTIONS (Serial No. 77621230), on the basis of Kellogg’s prior use and registration of SMART START for one of its cereals.  The application for SMART SELECTIONS recites a few dozen types of food and beverage products, which indicates to me that the mark will be used as a store brand similar to the GREAT VALUE name used by Walmart.  Certainly, Kellogg cannot actually believe that it owns exclusive rights to the word “smart” for use in association with every conceivable food and drink product, especially considering the term’s  highly suggestive nature.  I mean, come on, that word doesn’t even have a “K” in it!

Finally, Kellogg filed an opposition against an application (Serial No. 77712201) for the following logo that is used in connection with bottled water:

Water K

I think that, in this case, at least Kellogg has an argument that this logo could be confused with its rather famous stylized K mark and/or dilutes the distinctive quality of Kellogg’s stylized K.  I did some research into the company that owns this logo (Streamlife Water, LLC) and found its website showing use of the logo on its bottled water.  You be the judge.

After seeing Kellogg’s litigious activity in just one day, I was curious to see how many oppositions Kellogg filed in 2009.  I was absolutely blown away to learn that Kellogg has filed an astonishing 72 oppositions in the past year.  That averages to more than one opposition per week at the cost of nearly $25,000 in government filing fees alone.  Needless to say, Kellogg has been one of the most aggressive companies when it comes to challenging the intellectual property rights of others, and while I imagine that some of these oppositions are worthwhile and aimed at protecting its valuable brands, judging from those discussed above, many of them are probably of questionable merit at best.  And every one of us suffers from Kellogg’s behavior in the form of both higher prices at the supermarket and higher taxes to help pay for personnel at the Trademark Office to handle these oppositions.

I’ll let you know if I receive a cease and desist notice from Kellogg requesting that I remove all uses of the letter “K” from this posting.

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