Can you own a bird? When it comes to an actual feathered animal in a cage, then the answer is yes. When it comes to the sole rights to use the image of a bird in marketing, the issue becomes much more complicated. Popular cereal maker Kellogg’s is claiming that a nonprofit organization is violating their copyright by using a toucan in their logo design and marketing.
The main problem with Kellogg’s claims is that the only similarity that the Maya Archaeology Institute’s logo beats to the spokesanimal for Froot Loops is that they are both toucans. Toucan Sam is a cartoony, anthropomorphic creature, while the bird in the MAI logo is stylized and modern. In addition, the toucan is a bird that is local to the region that the MAI represents. In other words, the San Francisco based charity has good reason to use this bird in their advertising.
The MAI has been quick to point out these and other issues since receiving a cease-and-desist letter from the cereal company. In a legal brief, lawyers pointed out that Toucan Sam is not similar to an actual toucan bird, which is the image seen in the logo. The logo also features Mayan images such as a step pyramid. Because the company has no intention of entering the cereal market, the chances of confusion are slim to nil. Look at the two images; can you tell which is Toucan Sam? It was not hard for me to differentiate between the two.
The MAI’s purpose is to educate Guatemalan people about Mayan history and to support the preservation of Mayan architecture in the area. The images in the logo show the place that the organization is trying to protect. This is just one of many small nonprofit organizations that are doing important work around the globe. It seems unfortunate that they must take time away from this work to defend their brand.
Kellogg’s claims that their main concern is that MAI will use their logo design on t-shirts and other clothing, because Toucan Sam is also present on clothing. Again, would you be confused? We wouldn’t. In addition, Kellogg’s does not like the use of Mayan imagery because they have used this in the past and thus feel a misguided proprietary claim on it. We could not find any Mayan references on the company website except for a Mayan witch doctor who is the villain in a Froot Loops game. This is a negative reference and one that MAI will be happy to let Kellogg’s keep.
If the MAI cannot use either a toucan or Mayan images on their logo design, what kind of logo can they have? In this case, it seems that Kellogg’s is merely being a bully. Hopefully the courts will side with the MAI, although it will still come at great expense to the small nonprofit and take time and money away from their important work in Guatemala. At the time of writing, there is talk of a settlement, although we hope that this settlement includes allowing the MAI to use their current image.