Cereal Trade Dress

Honey Nut Cheerios was the most popular cereal in America, consumed by roughly 43.37 million people in 2020 (Lindner 2024). This cereal brand from General Mills did not get this popular due to the overwhelming quality of the food itself but how it is marketed to the public. The use of the popular mascot BuzzBee, the colors that the makers utilize and the affordances/guarantees the cereal proclaims have helped this cereal stay relevant over the years where many other cereal brands have faded away. It is no secret that the box art of a cereal strongly affects consumer purchases so many companies try to develop the best designs often creating the cereal around the mascot itself.

Introduction to Trade Dress

Trade Dress reflects the creativity of a company's product design that sets it apart from other companies. “Trade dress is the commercial look and feel of a product or service that identifies and distinguishes the source of the product or service. It includes the various elements (such as the design and shape of materials) used to package a product or services.” (Justia) This can include the product packaging which is the shape of a product`s container, the graphics on a product, the layout, and the color combinations that the company uses making their products distinct. 

Trade dress can also include product design which is the shape, configuration, and design features of the product itself. 

For Trade Dress to be eligible for protection under the law and USPTO registration, it must satisfy the same requirements for trademarks and be nonfunctional:

  • It must be words, phrases, symbols, colors, shapes, logos, used to identify the source of the goods or services.

  • It must be distinctive - It distinguishes the goods and services of one party from those of another party, and it has not been trademarked by another company. Product design can only be inherently distinctive if it develops a secondary meaning over time. This is when consumers identify the design of a product specifically with a brand or company.

  • The design must be non-functional for the product to be of use.

  • It must be sold in interstate commerce

Cereal Branding

Josh Burke, a former attorney at General Mills, compared the trademark strategies of General Mills and Kellogg.

While General Mills develops and trademarks various unique brand names like Cheerios, Trix, Wheaties, and Lucky Charms, Kellogg takes a different approach, using the name “Kellogg’s” in the names of its cereals. Kellogg likely could not trademark the Raisin Bran or Frosted Flakes names because under trademark law, those name are descriptive or generic, and thus not distinctive enough to be trademarked. This is because the names are simply describing the product itself. Even though these major competitors protect their brands differently, these brands are still well-known in the cereal industry.

Product Design

Josh explained trade dress for cereal companies.

Cereal companies do not have a lot of options to differentiate themselves when it comes to product design especially with shape or configuration. Companies make up for this in design features. A lot is invested in the colors, logos, and mascot of a cereal box to define its brand. Josh emphasized this when he explained the importance of Cheerios being in the shape of little O’s. Josh said that a lot of his time spent as an attorney at General Mills was to assist with the look and feel of the cereal brands to align with their names.

Josh told us of the time where he was tasked with submitting a trademark application for the color yellow for the box of their leading brand, Cheerios. The process ended up taking 2 years but it ultimately ended in defeat as the US Trademark Office determined that the color yellow was not have secondary meaning for Cheerios as other generic brands used the color in their own boxes for similar cereals.

Due to the design limitations of manufacturing functional cereal boxes, companies tend to stress features on the boxes like color. The Trademark Trial and Appeal Board reviewing General Mills’ application for trade dress protection of Cheerios yellow color stated, "Customers, accustomed to seeing numerous brands from different sources offered in yellow packaging, are unlikely to be conditioned to perceive yellow packaging as an indicator of a unique source…. Rather, they are more likely to view yellow packaging simply as eye-catching ornamentation customarily used for the packaging of breakfast cereals generally" (Kravets 2017). Josh explained that General Mills would have had more of a case if they had applied for trade dress protection much earlier when other companies were not using the yellow color. 

Although General Mills could not get the color yellow as a part of their cereal box trade dress, having a color as a trade dress is possible. The company Tiffany, which primarily is known for making jewelry, was able to get a specific shade of blue used for their packaging as a registered trade dress. The registration is described as featuring the color blue as an integral part of the jewelry packaging. This means that with the right conditions, color could be registered for cereal companies but perhaps the market is too diluted for a brand’s package color to stand out among the rest, especially with generic brands on the shelves.

Another instance of denied trade dress is with Post’s attempt to register Fruity Pebbles’ color and form. They were ultimately rejected by the U.S. Patent and Trademark Office. The Fruity Pebbles brand had, “evidence of long use, extensive advertising, unsolicited media coverage, and significant sales— [but] the examining attorney found the evidence insufficient to demonstrate acquired distinctiveness” (Maerker, 2024). The cereal industry appears to be very restricted in making the case that their product designs are distinctive.

Alex Christian discussed the importance of using color to identify products in a way that shoppers can easily recognize them.

Some brands will stick to one color while others will pick a specific color combination with various shades for their line of products. Since cereal companies have been shown to be unsuccessful in registering color for trade dress, they have the liberty of choosing whichever color aligns most with their trademarked logo design.

Trade Dress and Mascots

Josh indicated that important components of cereal trade dress can be the mascots themselves and the importance of their role in building brand identity.

Josh told us about General Mills’ successful cereal mascots including Lucky the Leprechaun and the Trix Rabbit. Mascots are important to cereal companies and their marketing, particularly to children, and there has been a long history of successful ones, and forgotten ones. One famous mascot is Captain Crunch, who is still widely known today but his supporting mascots have not survived. The Captain Crunch cinematic universe contained characters like, “Captain’s nemesis Jean Le Foote, the signalman Woody, Seadog, Magnolia Bulkhead, Wilma the Winsome White Whale, and even a green, one-eyed alien version of the Captain” (Adams, 2018). One of the mascots Chockle was featured on TV to promote Coco-Crunch, a chocolate variety of the brand. The series did not last long as the brand was rebooted in the early 2000s.

Alex explained that trademark infringement is uncommon between the three major cereal manufacturers (Post, General Mills, and Kellogg.

References

Adams, L. (2018, February 13). A Guide to Failed Cereal Mascots. myrecipes. https://www.myrecipes.com/extracrispy/a-guide-to-failed-cereal-mascots

Justia. (2023, October 15). Trade Dress Under the Law | Intellectual Property Law Center. Justia. https://www.justia.com/intellectual-property/trademarks/trade-dress/

Kravets, D. (2017, August 24). General Mills loses bid to trademark yellow color on Cheerios box. Ars Technica. https://arstechnica.com/tech-policy/2017/08/general-mills-loses-bid- to-trademark-yellow-color-on-cheerios-box/

Lindner, J. (2024, February 7). Statistics About The Most Popular Cereals • Gitnux. Gitnux. https://gitnux.org/most-popular-cereals/

Linkedin. (n.d.). Joshua Burke. Linkedin. https://www.linkedin.com/in/joshua-j-burke/

Nestle. (n.d.). Koko-Krunch - Chocolate-Flavoured Whole-Grain Cereal. Nestlé Cereals. https://www.nestle-cereals.com/global/cereals/koko-krunch

Maerker, J. J., & Viger, T. V. (2024, March 22). A Rainbow of Lessons from Fruity Pebbles' TTAB Loss. Finnegan. https://www.finnegan.com/en/insights/articles/a-rainbow-of-lessons-from-fruity-pebbles-ttab-loss.html

Nestle. (n.d.). Koko-Krunch - Chocolate-Flavoured Whole-Grain Cereal. Nestlé Cereals. https://www.nestle-cereals.com/global/cereals/koko-krunch

Topher. (n.d.). Topher's Breakfast Cereal Character Guide. lavasurfer.com. https://www.lavasurfer.com/cereal-generalmills.html

United States Court of Appeals, Sixth Circuit. (2000). KELLOGG COMPANY v. EXXON CORPORATION (2000) | FindLaw. FindLaw Caselaw. https://caselaw.findlaw.com/court/us-6th-circuit/1082406.html

USPTO. (n.d.). 86571740. Trademark Status & Document Retrieval. https://tsdr.uspto.gov/#caseNumber=86571740&caseSearchType=US_APPLICATION& caseType=DEFAULT&searchType=statusSearch