Photo

Toucan Sam, the mascot for Froot Loops cereal, is gunning to be the only bird of his kind in the United States. Kellogg, the maker of Froot Loops, Corn Flakes and other breakfast cereals, has filed a letter of opposition that would force the San Ramon based Maya Archeology Initiative (MAI) to cease using the toucan as its logo.

"You can't trademark a bird, even if you're really big," said Clay Haswell, chairman of MAI, which defends indigenous Mayan culture. "The keel-billed toucan is extremely common in the rainforest in Guatemala where we work. It's not extremely common in Michigan where Kellogg is headquartered."

According to MAI's website, its logo is based upon a realistic toucan native to Mesoamerica, while Kellogg's Toucan Sam is a cartoon character with colors that represent Froot Loops' food coloring.

On Aug. 21, Kellogg submitted a letter of opposition to the federal copyright trademark board claiming that the use of the toucan in MAI's logo infringes on its Toucan Sam character and games. The letter is a formal legal action and is considered to be the precursor to a lawsuit; MAI has since filed a response to that letter.

"In no way does it infringe. Will people really confuse a nonprofit that helps children and supports education with a breakfast cereal," Haswell asked.

MAI's response letter challenges the assertion and notes Kellogg Company vs. Toucan Golf, a 2003 case in which a similar nuisance suit was struck down by a federal appellate court. "Our attorney said 'You have attempted to do this repeatedly with other companies and you have been resoundingly defeated every time.'"

While Kellogg did not comment on past legal battles, Company Spokesperson Kris Charles said Kellogg is "continuing these conversations and hopes to find an approach that will work for both organizations."

"We previously reached out to the World Free Press Institute, the parent of the Maya Archeology Initiative, to identify a solution whereby they can continue with the design actually in use while also protecting our Toucan Sam trademark used on Kellogg's Froot Loops since 1963," he wrote.

Charles did not clarify what that solution might look like.

But what began as a trademark disagreement has since blossomed into a question of cultural sensitivity. MAI alleges that Kellogg's Froot Loops computer games are objectionable and blatantly racist.

"The only character of color that is remotely Mayan is a witch doctor that scares the children and steals from them," Haswell said. "This story has begun to break in Guatemala, the reaction is one of…extreme disappointment in Kellogg. In this day and age how a company can be so culturally insensitive especially when they market in Guatemala."

If the copyright trademark board disregards Kellogg's letter of opposition, or if MAI wins the potential lawsuit, the nonprofit plans to ask the corporation to "cease using racist games immediately and…take any blatant any and overtly racist material off their children's website."

Kellogg has an additional 60 days to file a second level of appeal, which would officially initiate a lawsuit.

Are you receiving Express, our free daily e-mail edition? See a sample and sign-up for Express.