Go find a picture of the truck.

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

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ndriscoll 14 hours ago | parent | next [-]

The stylistic 'E' actually looks nothing alike if you look at the picture in the complaint linked elsewhere in the thread[0]. Just about the only similarity is that it's vaguely cursive red with white outline. The 'E' is probably the most obviously different part.

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...

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dghlsakjg 14 hours ago | parent [-]

Are you looking at the Eggo logo in that filing from the 30s? If you look at the modern Eggo logo shown later in the filing compared to the egg roll trucks usage of it in “L’Eggo my eggroll” it is clearly so similar that it is hard to distinguish which “L’Eggo” belongs to the truck if you isolate them.

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.

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ndriscoll 13 hours ago | parent [-]

I'm looking at all of what's in that document. The 'E' is literally the most dissimilar letter. It's very obviously distinct, and even more obviously distinct when isolated. In any case, they might legally prevail, but let's not kid ourselves: no one is going to be confused. The lawyer who wrote that is not just immoral in some abstract sense; they are concretely a disingenuous liar.

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wilg 12 hours ago | parent [-]

Arguing the "E" in the "Eggo" trademark and the "E" on the egg roll truck are so distinct that anyone arguing it must be lying is not a reasonable position.

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ndriscoll 12 hours ago | parent [-]

My commentary on the 'E' is a response to that being specifically called out as the same in an earlier comment when it's specifically not the same if you actually look at it. The bit about the lawyer lying is what I quoted from the court document: that it's "likely to deceive and cause confusion, mistake, or deception among consumers or potential consumers" about whether this is endorsed or associated with Kellogg. And yes let's not kid ourselves, that is a lie. No one including the lawyer thinks that's true. Saying things that you obviously think are untrue is lying, even if you do it professionally.

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dghlsakjg 11 hours ago | parent | next [-]

I called out the E as one of numerous obvious similarities in the styling of the motto, not specifically. You are choosing to focus on just the E instead of the other similar elements taken as a whole. We can drop the disagreement over that specific letter and my argument as a whole still stands.

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.

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ndriscoll 10 hours ago | parent [-]

It's based on recognizable elements because it's clearly parodying them; they are not copying the brand. They are not relying on people thinking there's an endorsement or association with Kellogg. They're relying on a chuckle. This stuff is all obvious to anyone with enough reasoning ability to pass the LSAT (or anyone who can pass middle school), so obviously any lawyer who claims otherwise is a disingenuous liar.

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.

	▲	dghlsakjg 9 hours ago \| parent [-]
		Parody defense typically relies on there being an underlying comment about the brand or product. Commercial use with no clear speech purpose will not be looked on favorably by a court. Copying someone’s brand isn’t a parody by the court’s Rogers test which will be applied in this case to determine if it is a legal parody. 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.

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wilg 12 hours ago | parent | prev [-]

I agree you had a reason for what you said about the "E", I'm taking issue with what you said.

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.

	▲	Dylan16807 12 hours ago \| parent [-]
		> They are representing their client's position. 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.

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PrettiGoodDead 14 hours ago | parent | prev [-]

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