Frankfurt Kurnit Klein & Selz PC: Trademark Fight Erupts Between Cereal Giant and Indie Rock Band

We’d forgotten about this viral video

An unlikely trademark battle has begun between indie rock band OK Go and breakfast cereal giant Post Foods, LLC. The subject of the battle? Post’s “OK! Go” breakfast cereal to-go cups.

You may remember OK Go’s viral 2005 “Here It Goes Again” music video, which features an eye-catching performance of the band dancing on treadmills. The music video won a Grammy, a YouTube award, and was named on of the 30 all-time best music videos by Time Magazine. (You may know Post Foods from: Honey Bunches of Oats, Pebbles, Chips Ahoy! . . . the list goes on.) And you may be wondering what has OK Go been up to since they got off those treadmills back in 2005. For one, they’ve been fighting about cereal with Post Foods.

On January 13, 2023, Post filed a lawsuit against OK Go seeking a declaration that Post’s use of the OK GO! mark does not violate the Lanham Act, related state law claims, or any of OK Go’s trademark rights. In the nine page complaint filed in United States District Court for the District of Minnesota, Post alleges that OK Go has been threatening for months to sue Post for purportedly infringing on the band’s trademark rights to its name through the launch of to-go cereal cups on the grounds that the branding suggests to consumers that the band endorsed the cereal giant’s product. According to the complaint, on September 9, 2022, an attorney for the band sent Post a cease-and-desist letter, noting how OK Go’s band members were “surprised and alarmed” to see the company use of its name on the new cereal products in claiming that the new brand name would “suggest to consumers that OK Go is endorsing Post’s products,” or falsely imply Post had received permission to use the band’s name. Post alleges that it offered to pay OK Go “for a branding collaboration/co-marketing arrangement” in a good faith effort to resolve the dispute without legal action, but the band rejected the offer with no counter-proposal. Accordingly, Post wants Judge Jerry W. Blackwell to clear the air by deciding that its to-go cups do not infringe on the band’s rights in its name.

OK Go band members told Billboard that they were surprised to learn about the to-go cup branding, and then, about Post’s lawsuit. “A big corporation chose to steal the name of our band to market disposable plastic cups of sugar to children. That was an unwelcome surprise, to say the least,” the band wrote. “But then they sue US about it? Presumably, the idea is that they can just bully us out of our own name, since they have so much more money to spend on lawyers? I guess that’s often how it works, but hopefully, we’ll be the exception.”

A trademark violation depends, in part, on whether or not consumers are likely to be confused. But Post is not convinced that consumers will be confused at all because, according to Post: (1) OK Go has no rights to its name in connection with cereal products or any other good or beverage products; (2) the prominent display of Post’s federally registered mark “POST” makes clear that the cups are a Post product; (3) there are significant differences between the two marks, and (4) there are significant between the goods and services sold by the parties, and the channels in which they trade their goods and services.

Will cereal lovers assume that the to-go cups are endorsed by OK Go? Stay tuned to find out.