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.
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.
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.
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.
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.
The latest I can find on Bad Spaniels is that the courts concluded they did not infringe the trademark exactly because it was an obvious parody, but that it tarnished the brand because of the association with dog feces[0]. Notably, it seems that brand confusion is still central to the infringement question, and SCOTUS ruled that parody plays into that.
> Reaching the Supreme Court, the case took another turn in 2023 when the Court vacated the Ninth Circuit’s decision, unanimously ruling that the Rogers test does not apply in cases when a trademark is used as a source identifier, rather than as a purely artistic work. As a result, the Supreme Court remanded the case for the district court to reconsider Jack Daniel’s counterclaims under traditional trademark principles.
In the food truck case, clearly they are using it as their own brand identifier (so it's analogous to Bad Spaniels), and clearly it is a parody, so clearly it is not trademark infringement as with BS. Unlike the BS case, they're also not tarnishing the Eggo brand, but just making a playful pun, so that outcome doesn't seem likely here.
You misinterpreted the outcome of that case. The ninth circuit ruling was in favor of VIP. The Supreme Court overturned that ruling and said the lower court needed to discard the rogers test as exculpatory for VIP/BS.
I’ll use a direct quote from your own source to explain how the actual ruling ended up losing the case for BS:
…the district court found that it nevertheless dilutes the fame and distinctiveness of the whiskey maker’s reputation, thereby still running afoul of the Lanham Act’s anti-dilution provisions. The amended order follows the Supreme Court’s decision ending the application of the more liberal Rogers First Amendment test in trademark cases involving expressive works used as source identifiers. In doing so, while finding that the parody of the “Bad Spaniels” dog toy decreased the likelihood of confusion with Jack Daniel’s by modifying the analysis of certain factors in a light more favorable to VIP, the district court ultimately found VIP’s parody of the famous whiskey brand to be a double-edged sword that contributed to finding dilution by tarnishment.
/quote
The Supreme Court case said that because they were using a trademark as a brand identifier they couldn’t argue for a rogers test exemption. In other words if you use someone else’s trademark, even as a riff or joke, in your trademark, the bar is much higher. L’Eggo my Eggroll is doing exactly that.
Your argument that “In the food truck case, clearly they are using it as their own brand identifier (so it's analogous to Bad Spaniels)” perfectly encapsulates why this is a violation once you grok the outcome of the court case. Bravo for phrasing it so succinctly.
But it's not tarnishment. In the BS case, they found that it wasn't infringement, but that they were using it in a way that would cause reputational damage (also dubious, but sure). Here it would seem the claim that it causes reputational damage is even more tenuous; the food truck is not portraying them in any kind of negative light. In fact, an even better fit is likely the Chewy Vuitton toys[0]:
> While it is true that finding a mark to be strong and famous usually favors the plaintiff in a trademark infringement case, the opposite may be true when a legitimate claim of parody is involved. As the district court observed, "In cases of parody, a strong mark’s fame and popularity is precisely the mechanism by which likelihood of confusion is avoided."
> In a similar vein, when considering factors (v) and (vi), it becomes apparent that Haute Diggity Dog intentionally associated its marks, but only partially and certainly imperfectly, so as to convey the simultaneous message that it was not in fact a source of LVM products. Rather, as a parody, it separated itself from the LVM marks in order to make fun of them.
In the BS case, SCOTUS explicitly noted that parody is a factor in determining confusion and therefore infringement[1]:
> But a trademark’s expressive message—particularly a parodic one, as VIP asserts—may properly figure in assessing the likelihood of confusion ... So although VIP’s effort to ridicule Jack Daniel’s does not justify use of the Rogers test, it may make a difference in the standard trademark analysis. Consistent with our ordinary practice, we remand that issue to the courts below.
And then the ultimate conclusion was that it was not infringement. SCOTUS ruled the lower court had taken an incorrect shortcut, but ultimately the answer (on the infringement question) was the same for basically the same reason.
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.
I followed the Snowden stuff fairly closely and forgot, so I bet they didn't think about it at all and if they did they didn't care and that was surely the right call.
AIUI there are still disagreements about how to calculate that exactly. This study doesn't (and doesn't try to) provide any input towards settling that.
There are no reputable studies that show EVs having anything like the harms of legacy cars. The worst you can get is that if you're on a carbon-intensive grid, a Hummer EV might be as bad as a compact gas car.
Well, a hybrid doesn't solve the problem. We don't need to reduce greenhouse gas emissions, we need to zero them out. You can't do that if you sometimes burn gas.
Zero greenhouse emissions isn't a remotely achievable goal.
I hope you have never run a technology project this way by starting with a goal that simply can't be accomplished; you would have set it up to fail, demoralized your team, and chased the wrong priorities.
The goal is net zero, meaning, emissions added = emissions removed. There must be an allowance for some emissions. Industrial human life cannot continue without some amount of greenhouse emissions.
For that goal, I am way better off driving less than buying a new EV - it releases greenhouse gases to produce the plastic in your Tesla and the battery in your Nissan Leaf.
I walk to the supermarket. I work from home. I don't eat red meat. I'm careful with my home electricity consumption. For the third time in this thread: my old 4 cylinder Corolla is not the thing standing between us and existential doom. Focus on more important things.
I don't understand the myopic focus on car emissions: is it because Elon talks about it? Is it because it's the most easily seen for you?
Your Corolla is worse than a BEV because it puts way more GHG in the atmosphere, making net zero harder. Your opinion that the Corolla emits less GHG than a BEV is not borne out by the data. Most of the pollution of your car is from using it, not building it. EVs flip that and only are only slightly worse to produce. And we have to replace pretty much every road vehicle with a zero emission one, and sooner is better.
Buying the new EV, selling your old car, and helping push ICE vehicles off the roads is better than not replacing it in any reasonable environmental accounting.
Also, 15% is... a very significant percentage. You have to do lots of efficiency improvements across every part of the world to make net zero happen. Not to mention that slice of the pie would grow to 30-40% if electricity goes zero-carbon.
And we simply have the technology to zero it out. But, like you, most people want to invent a reason the green technology is actually bad.
I think you should be allowed to stop supporting a hardware device without open sourcing the software, full stop. I just think that's the least bad option.
I'd be fine if manufacturers had to have some kind of standard "nutrition facts" label of what will happen to its functionality if support is ended.
I think it's okay, or even better probably, if they move to subscription only. All Apple's paid apps have languished for years and if its actually a revenue stream for them maybe they'll actually make them industry-leading again.
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