Can the Infringer Sue?

Richard Rimer

January 25, 2023

Yesterday I saw a story in which an indie rock band named OK Go has sent a cease-and-desist letter to cereal maker Post Consumer Brands. It seems that Post is developing a disposable cereal bowl under the name OK GO!, and the band is concerned that this will cause marketplace confusion.

Many people’s knee-jerk reaction is that cereal and rock bands are not related items, therefore, there is a very low chance for likelihood of confusion. This ignores the fact that #likelihoodofconfusion also covers confusion of #affiliation#endorsement or #sponsorship. The band has promoted many products in the past, including Post’s own Honey Bunches of Oats. It appears that the band is concerned that the public will assume the band is endorsing this new disposable cereal bowl. In fact, the band purports to be disgusted by the concept of a pre-sweetened bowl to which you just add water.

The two sides can’t settle this issue on their own, so this matter is headed to court. The part of the story that may surprise most people is that Post is the party that has filed the lawsuit. They are seeking a #declaratoryjudgment from the court that there is no likelihood of confusion. This will allow them to move forward with their project without the threat of a lawsuit over their heads.

Food touches so many parts of our lives, and therefore brands used in connection with food are way more likely to be found to be confusingly similar with brands from other industries than would be expected. This is one reason our firm is offering special incentives to companies in the food and beverage industry in 2023.

Don’t let this happen to you. #Searching your name before you open your business can be one of the most valuable steps you take early on. I offer the service for $275, and I am providing this at a discount for anyone in the #foodandbeverage industry. Please arrange a free consultation with me to discuss this: