Fun_People Archive
25 Mar
Local Band Gets Undeserved Trouble

Date: Sat, 25 Mar 95 12:50:45 PST
From: Peter Langston <psl>
To: Fun_People
Subject: Local Band Gets Undeserved Trouble

[From an unnamed Fun_Person... -psl]

Date: Mon, 20 Mar 1995 03:15:41 -0500
Subject: Toucans

... The Kellogg's company is harassing us about the name of the band based
on the trademark they hold (in cereal marketing) for Toucan Sam.  The case
is a joke, but our legal fees aren't. If you're interested, email Toucans
and ask for the info post.  It's pretty insane.  I'm dealing with a San Jose
lawyer who has subpeona'd us all.  He's trying to get me to a deposition at
a time that I can't make it and he's being very mean.

The Toucans e-address is:


[In response to that note (and some goading from Lani Herrmann)...  -psl]

From: (Pete R.)
Subject: Toucans vs. Kellogg's Update
Organization: Toucans Steel Drum Band

   Recap: The TOUCANS, a Seattle-based steel drum band, are engaged in a
trademark dispute with the Kellogg Company, maker of 'Froot Loops'
cereal.  Kellogg's claims that the Toucans are infringing on their
trademark, 'Toucan Sam'.  The Toucans, who are attempting to trademark
their name in Class 9, recorded material, find the Kellogg Company's
position hard to believe.

   Although the Toucans have pointed out that their name was derived from
a pun on the instruments they play ('two cans'), Kellogg's maintains that
the band's name is a 'simulation' of their mark 'Toucan Sam', continues to
claim that our product (cassettes and cds) would cause confusion among
their customers (breakfast cereal consumers), and refuses to withdraw
their opposition to the band's trademark application.

   The Toucans need your help to prevail!  The Kellogg Company has so far
provided no factual basis for their claims of infringement, but refuses to
withdraw them.  Meanwhile, they are sending subpoenas to all members of
the band as well as to the band's agent, demanding ALL documents
mentioning the name of the band.

   You CAN make a difference!  Please email Kellogg's hired lawyers
(Jeffrey Kaufman of Oblon, Spivak, McClelland, Maier & Neustadt at
JHKAU@OBLON.COM) and tell them what you think about this case!

   For the complete press release or for more information about the
Toucans, or just to let us know what you think about this matter, please
contact us at TOUCANS@BLARG.COM

   This is not a joke!  We are looking at THOUSANDS of dollars of legal
fees which we cannot afford!  To make a greatly appreciated contribution,
write to our lawyer Neil Sussman, 10727 Interlake Ave N., Seattle, WA 
98133.  Please make contributions payable to The Toucans Legal Defense
Fund.  All contributors will be thanked with a sincerely appreciative
letter and a Toucans cassette!

   Thanks for your support and email!

   Pete R.
   Toucans Steel Drum Band


   Rob Witmer, the leader of the Toucans Steel Drum Band, spent the entire
day of Monday, March 20 in deposition with Neil Greenstein, a lawyer from
the San Jose branch of Oblon, Spivak, McClelland, Maier & Neustadt,
Kellogg's representatives in this case.  According to Mr. Witmer, some of
the questions were less than incisive...

(All quotes accurately paraphrased)

   At many points in the deposition, Mr. Greenstein asked questions about
the food served at our performances.  According to our attorney Neil
Sussman, these questions were aimed at learning whether the Toucans had
ever played at places where breakfast foods, including cereals, were

Neil Greenstein: "Do you recall a performance at Bruegger's Bagels?"
Robertson Witmer: "Yes."
NG: "Am I correct in assuming that bagels were served there?"
RW: "Yes."
NG: "Were there other kinds of food served there?"
RW: "I believe coffee and soup were served."
NG: "Were there any eggs being served?"
RW: "No."

   Upon learning that no eggs had been served, Mr. Greenstein moved on to
a new subject.

NG:  "Do you recall a performance at the Ballard Seafood Fest?"
RW:  "Yes."
NG:  "Was there any food served?"
RW:  "Yes."
NG:  "What kind of food?"
RW:  "Seafood."

   After quite a number of questions on this topic,, Mr. Greenstein moved
on.  Noticing that in the band's album photo Mr. Witmer was wearing a
t-shirt depicting Ernie & Bert from the popular tv show Sesame Street, Mr.
Greenstein asked:

NG: "Are you affiliated with Sesame Street in any way?"
RW: "No."
NG: "Do you work for Sesame Street?"
RW: "No."
NG: "How did you come to be wearing that shirt in the photo?"
RW: "I purchased the shirt."

   Mr. Greenstein then abandoned this line of questioning.

   On a less amusing note, much of Mr. Witmer's time and money was wasted
during the day, in part as Mr. Greenstein unsuccessfully attempted to
communicate with Jeffrey Kaufman (primary counsel for Kellogg's) in
Arlington, VA via modem.  The deposition was rescheduled to continue on
April 3 by mutual agreement of the parties.

                        Toucans Steel Drum Band                        
                     PO Box 30081, Seattle, WA  98103                  
                   (206) 545-7375 <>                 
            A division of Marketable Tone Generation Systems           
                         "Iron helps us play!"                         

[=] © 1995 Peter Langston []