OK Go, the rock band best known for their viral and elaborate music videos, is making headlines for a different reason today. As reported by Variety, the band has filed a trademark dispute against Post Foods who have recently released an “anytime, anywhere breakfast cereal bowl” that is called, what else, OK GO! News of the legal troubles began earlier this year with the band themselves making a post about it on social media in addition to accusing them of infringing their trademark. Post has asked a judge for a “declaratory judgement” ruling in their favor, but considering the circumstances it may not be that easy.
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“We have been sued by Post Foods,” the Instagram post from OK Go the band reads. “Have you ever had your name stolen by a multi-billion-dollar food processing Goliath? Here’s how it goes down: 1) They apply for a trademark on the name you’ve been using for 25 years. 2) You send a letter asking them to pick a different name, please. 3) They SUE YOU IN FEDERAL COURT. On top of it all, according to Post, this breakfast food is ‘ready to rock.’”
Central to trademark cases is the “likelihood of confusion” that it would present to the public. According to the US Patent and Trademark Office, the “likelihood of confusion” can come down to factors including: “When marks sound alike when spoken, are visually similar, and/or create the same general commercial impression in the consuming public’s mind.” That certainly makes this appear to be an open and shut case for OK Go the band, but there’s also the factor that between these two trademarks, they’re not actually selling the same things.
As the USPTO puts it, even when trademarks are found to be confusing by nature of similarities, the “likelihood of confusion” only exists if the goods and/or services of the two trademarks are “related.” There is some wiggle room with this as there’s not a demand that they be identical goods/services, it’s often enough that “consumers are likely to assume (mistakenly) that they come from a common source.” Something that seems plausible in this instance.
“It’s enraging… It seems like such cut-and-dry bullying,” OK Go lead singer Damian Kulash told Variety about the lawsuit. “There are so many other things you could call your fucking cereal. Just pick one. Nobody looks good in this. Just pick a new name.”
“Our general policy is to not comment on pending litigation,” Post said in a statement. “However, we do want to clarify that Post is not seeking to stop the band OK Go from using its name in any way. Instead, we are simply asking a court to find that Post is legally able to use the words OK GO! on its new breakfast cereal product. Trademark law allows companies to use the same words on different types of goods and services – just like the word DELTA is used for faucets, air travel, and dental insurance.”
To make things even more confusing, Post claims an attempt was made to collaborate with and co-market their OK GO! cereal with OK Go the band, but that the group refused. OK Go’s attorney disputed that, noting that “No offer was made.”
