Trademark Battle Throws Seattle Band For A Loop Kellogg Says Toucans Will Leave Customers Confused
Here’s a quiz: Can you tell the difference between a box of cereal and a steel-drum band?
If so, you’re obviously not one of the folks the Kellogg Co. is concerned about.
The cereal giant thinks there might be a problem with some people, though. So it has marshaled its massive legal muscle against a Seattle steel-drum band, the Toucans.
It claims the band - which plays Afro-Caribbean music on recycled oil drums, beaten with drumsticks made from sawed-off TV antennas is infringing on its trademark for the Froot Loops’ avian icon, Toucan Sam.
“We’re concerned because we believe that their usage could cause confusion among our consumers,” said a Kellogg spokesman, Anthony Hebron.
But he would not comment on why Kellogg thinks Toucan Sam might be confused with the Toucans, who named themselves after the tropical fruit-eating bird partly as a pun on their musical instruments, which are made of two cans.
If you haven’t heard of the Toucans, you’re not alone.
You won’t see them play at large arenas. You’ll have to catch their act at venues such as Seattle’s Northwest Folklife Festival, where the Toucans have performed - unscheduled - passing the hat.
They also have been spotted at friends’ weddings, a folk-music festival in McCall, Idaho, and the Lentil Festival in Pullman.
The battle with the giant of Battle Creek, Mich., is causing consternation at Toucan Manor, the band’s nickname for the old, creaky house - walls painted with unfinished tictac-toe games and amateur artistic efforts - that two band members, Pete Remine, 28, and Rob Witmer, 27, occupy in Seattle.
The trouble started after the band applied to register its name as a trademark. When it received a letter from Kellogg opposing its application last spring, members were stunned.
“We just laughed,” recalls Witmer, a full-time musician who formed the band in 1988 with other students at The Evergreen State College in Olympia. “We stopped laughing when we realized they were serious.”
Kellogg asked the Toucans to postpone their application while it determined whether the Toucans posed a threat to its trademark. Then came another request for postponement, and another, plus a blizzard of legal paperwork from the Washington, D.C.-area law firm specializing in trademark law that Kellogg had hired.
As the hours dedicated to the battle mounted, the band’s Seattle lawyer, who had been working for free, had to start charging for his work.
Finally, Kellogg sent a thick proposed settlement which, among other things, asked that the Toucans promise not to sell cereal, never to make reference to Kellogg and to refrain from any reference to the name “Sam” or from using a bird that resembled Toucan Sam.
Furthermore, Kellogg asked that if the band ever presents a talking toucan, it would not use a toucan with a British, New Zealand or Australian accent. Fine, said the band.
But Kellogg also asked that the band withdraw its trademark application. Not fine at all.
So the battle rages. Soon, Kellogg will send a lawyer to Seattle to question band members. The next step would be a hearing in Washington, D.C., where the band thinks it would prevail. But the band’s lawyer, Neil Sussman, says if it keeps fighting, legal costs could run more than $10,000.
With that in mind, the Toucans, who think Kellogg is trying to wear them out or exhaust their financial resources before the hearing, have started a legal-defense fund.
The pony-tailed Remine, who said his income last year was $9,500 and who hasn’t had a non-musical job since 1991, says the fight with Kellogg still seems “unreal.”
“We used to tell ourselves, if Kellogg knew (how small we are), they’d lay off. Now, we’re not so sure. We’ve given them lots of evidence, and they’re still coming on strong.”
xxxx KELLOGG’S PROPOSED SETTLEMENT Kellogg’s proposed settlement asked the Toucans to promise not to sell cereal, never to make reference to Kellogg and to refrain from any reference to the name “Sam” or from using a bird that resembles Toucan Sam. Furthermore, Kellogg asked that if the band ever presents a talking toucan, it would not use a toucan with a British, New Zealand or Australian accent.