The behemoth food conglomerate Kellogg Company is fiercely protective of its Toucan Sam character, the spokes-bird for the popular Froot Loops cereal. Kellogg has aggressively gone after many companies using (or attempting to use) toucans in their logos—but it may wish it had left the toucan in the Maya Archaeology Initiative’s (MAI) logo alone.
The Maya Archaeology Initiative, based in San Ramon, California is a project of the World Free Press Institute (WFPI), a nonprofit committed to defending free expression and challenging the repression of cultural heritages. In June 2010, WFPI submitted a trademark application with the U.S. Patent and Trademark Office for the MAI logo, a side view of a toucan with a Mayan temple in the background, both encircled by yellow-green light. It was published for opposition—printed in a public forum so that anyone who feels they have a legal claim to that imagery can file an objection—on March 15, 2011.
On July 19, 2011, WFPI received a letter from Kellogg North America Company stating that it had filed a notice of opposition for the logo image. In the letter, Kellogg essentially asserted that their use of a toucan infringes on Kellogg’s trademarked Toucan Sam character, games and other promotional goods and services. Kellogg said it was specifically concerned with the use of the logo on clothing items, including T-shirts and caps, that MAI offers as gifts to donors. It also objected to the Mayan imagery in the logo, stating that Toucan Sam is often depicted in a similar setting, and said the “IDigMaya.com” printed on the MAI items calls to mind another Kellogg’s character, their mascot for Smacks cereals, the Dig ’Em frog. “We are concerned about both consumer confusion and a dilution of our strong equity in these marks,” Kellogg corporate counsel David Herdman wrote in the letter.
“They essentially allege that they own trademark rights to all use of toucans anywhere in the world,” says Clay Haswell, chairman and co-founder of WFPI. “The fact is, they don’t. They have tried to make that claim previously in federal court.” Kellogg has opposed the toucan trademarks of several organizations, including Toucan Golf, which it took to court. In 2003, the U.S. Court of Appeals, Sixth Circuit, rejected the cereal giant’s claims and allowed Toucan Golf to keep its name and logo.
The differences between the two logos under dispute here are as stark as the differences between the two organizations. Kellogg’s toucan is cartoonish and the MAI’s is a more realistic representation of the colorfully billed bird that is indigenous to Central America and is a common motif in Mayan symbolism. Kellogg markets sugary breakfast food to children for profit and MAI educates Guatemalan children on Mayan history and culture and works to protect Guatemala’s cultural, historical and natural resources.
Kellogg and the MAI are currently in negotiations. Kris Charles, a spokeswoman for Kellogg Company, said via e-mail on August 26 that it has reached out to the MAI to identify a solution so that it can continue using the logo while still protecting its Toucan Sam. “We’re continuing these conversations and hope to find an approach that will work for both organizations.”
Whether they resolve this peacefully or not, there is no erasing some of the bad press this spat has generated for Kellogg recently. Haswell, who worked for the Associated Press for 18 years, has been keeping a tally of the coverage, which has been almost universally mocking of Kellogg. As of the last week in August, he said the story had been picked up by some 2,000 websites in 60 countries. He says a Detroit News poll showed that 96 percent of its readers sided with MAI.
What started out as a public relations headache for Kellogg has now morphed into something more troublesome. After receiving that first letter from Kellogg, Haswell said some of his colleagues went to the Froot Loops website to figure out what the company objected to. There they found a game in the Kellogg’s Adventure series, which supposedly put kids in a Mayan setting, and the only character of color is the villain, an evil witch doctor who cackles and steals. “Suddenly, [this fight] became a little bit more important to us than protecting our trademark,” he says.
Haswell can get emotional talking about the atrocities committed against the Mayan people—once one of the Americas’ most sophisticated civilizations—first by the conquistadors in the 1500s and then by the Guatemalan government during a decades-long civil war that began in 1960. Haswell says of the Froot Loops game, “It is just so insensitive. You scratch your head and wonder how people can be that dumb.”
Christina Gish Hill, an assistant professor with the department of anthropology and a faculty member in American Indian studies at Iowa State University, thinks Kellogg’s stance on the toucan logo is extreme and laughs at the suggestion that Kellogg—or any other entity—could own the rights to representations of the toucan. But the Froot Loops witch-doctor game was not at all funny to her. “It is very shocking that a company as prominent and far-reaching as Kellogg would create imagery that is just so blatantly stereotyped and offensive,” she says.
Hill sees parallels with the American Indian mascot issue, something she has been closely following. With both, young people are exposed to simplified stereotypes of Native people. She says this is particularly damaging to Native children. “These stereotypes—these representations—they are hurtful. They are embarrassing. Imagine a Mayan child going on to that website to play that game, how painful it might be for that child to see that.”
Kellogg promptly got that message. “As a company long committed to diversity and inclusion and responsible marketing,” Charles wrote in an e-mail, “Kellogg takes this concern very seriously.” It has removed the game from its website.
Score that one a win for the little guys.