ExxonMobil failed to block a trade mark infringement action bought by Kellogg in respect of ExxonMobil’s use of its “Tiger in the tank” cartoon character on petrol station stores selling food
Who: Kellogg and ExxonMobil
When: October 2000
Where: US Supreme Court
ExxonMobil failed to block a trade mark infringement action bought by Kellogg in respect of ExxonMobil's use of its "Tiger in the tank" cartoon character on petrol station stores selling food. The case now goes for trial in Tennessee in January 2001. Kellogg's "Tony the Tiger" cartoon character was created for Frosties by Leo Burnett in Chicago in 1952, while Exxon's "whimsical tiger" started life in 1959 courtesy of McCann Erickson Worldwide. Kellogg argue that ExxonMobil's tiger confused punters as to the origin of products on sale in the petrol giant's gas station convenience stores and diluted the strength of the "Tony the tiger" brand.
Why this matters:
If Kellogg succeeds it could have global implications, with Tony the tiger in action in 42 countries and ExxonMobil's big cat featuring in over 100. In the UK, trade mark "dilution" is not a legal cause of action as such, but even if the two tiger brands are registered for quite different classes of products (presumably petrol and food) Kellogg might be in with a shout if it could show that Tony the tiger had a "reputation" in the UK and that ExxonMobil's use of its own tiger in respect of food products by way of the branding of its convenience stores, was "detrimental" to Tony. In the UK there might also be a viable claim in passing off which could be boosted by market research evidence showing that consumers were confused as to whether the products in the ExxonMobil stores came from Kellogg, but the writer somehow feels that a UK Chancery judge would be difficult to persuade that passing off or even for that matter a trade mark infringement was occurring in this context.