In another in a long line of trademark imitation cases, Kellogg North America Co. LLC has filed a trademark and trade dress infringement lawsuit against a small Ohio-based food truck named L’eggo My Eggroll, arguing that the truck’s name and branding unlawfully copy Kellogg’s iconic L’EGGO MY EGGO trademark. According to Kellogg’s complaint, the food truck not only mimics the language of its well-known slogan but also borrows visual elements, including similar colors and fonts associated with Kellogg’s EGGO® waffles.
The dispute raises an increasingly common question in trademark law: When does imitation cross the line from parody into infringement?
The First Amendment does protect parody, including in the trademark context, as a form of expression. A parody typically imitates a brand in a humorous or critical way that makes clear the original brand is not involved. However, courts have held that parody does not excuse trademark infringement if the use is likely to confuse consumers about the source, sponsorship, or affiliation of the goods or services.
In addition to traditional infringement, Kellogg has also asserted a claim for trademark dilution, which does not require proof of consumer confusion. Under the federal Trademark Dilution Revision Act, owners of famous marks can challenge uses that blur the distinctiveness of the mark or tarnish its reputation, even without confusion. Given the long-standing recognition of the EGGO and L’EGGO MY EGGO brands and their association with Kellogg, the food truck’s use of a nearly identical slogan and similar visual elements may support a dilution-by-blurring claim. If the court agrees that Kellogg’s marks are famous and that the food truck’s branding impairs their uniqueness or commercial strength, Kellogg could prevail even without showing that consumers are misled.
In 2023, the U.S. Supreme Court directly addressed the tension between trademark rights and free speech in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), known as the “Bad Spaniels” case. There, a dog toy designed to resemble a Jack Daniel’s whiskey bottle used playful and irreverent language that made a joke using the original brand (though the joke wasn’t aimed directly at that brand). The Court held that the parodied use of another’s mark as its own source identifier is not automatically protected. In such cases, the standard trademark analysis applies.
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https://www.jdsupra.com/legalnews/l-eggo-my-rights-parody-or-trademark-6467641/
