It has been a crazy year. There have been a lot of ups and downs – times when things looked like they were poised on the verge of a giant breakthrough, and times when things couldn’t have looked any blacker. Most of the time, the peaks and lows would blend together, merely changes of state on a road that seemed to have no end. Now that there is little left but litigation and settlement, perhaps it’s best to bring our dedicated readers up to date.
Almost exactly a year ago – early April 1999, to be exact – we got a special delivery from Battle Creek, Michigan. We’ve received official and legal documents before, but never Priority Overnight. Obviously, this was important.
Inside the innocuous FedEx envelope was a Cease and Desist Order from Univers and Usherwood, representatives for the Kellogg Company. It took several days and the help of all of my in-laws to decipher what was going on, and once the meaning behind the 351-page document was deduced, it was so incredible as to seem almost like a joke.
The Kellogg Corporation felt we were infringing on their trademark and marketing for Product 19, a multi-vitamin and mineral cereal of Toasted Corn, Oats, Wheat and Rice. According to Univers and Usherwood, “[the Kellogg Company] has invested significant resources in elevating public awareness of the number 19, and its association with [the Kellogg Company’s] nutritiously delicious Toasted Corn, Oats, Wheat and Rice cereal, Product 19. As Ink 19 has failed to contribute significantly towards these efforts, we feel justified in applying the full force of the law and demanding that they quit riding our [damn] coattails and pick another Product to parody, hopefully a Post cereal, or [even better] some sort of supermarket brand that comes in a plastic bag.”
Needless to say, we were shocked. We quickly put the firm of Esterhazy, Esterhazy, Esterhazy, Esterhazy, Esterhazy and Mooch on retainer to help us defend against this attack from the cereal juggernaut. On E^5+M’s advice, we located a box of our new antagonist, looking for any sort of differentiating angle which would help us dismiss the Kellogg Company’s ludicrous claims. Even at first, our case didn’t seem to be all that strong. For example, Product 19 is Fat Free. So is Ink 19. A quick glance at the Nutrition Facts revealed that for the most part, Product 19 and Ink 19 were neck and neck, especially in the vital areas of Folic Acid, Cholesterol, Magnesium and Riboflavin. We actually edged out the competition in Fiber and Potassium – fact is, you’re better off eating an Ink 19 and a multivitamin in the morning than taking your chances with some Product 19 and cow juice. However, this wasn’t something we could take to the judge, especially since we were trying to prove that Product 19 is a breakfast food designed to stimulate the bowels, while Ink 19 is a music magazine designed to stimulate the ear and mind.
For a brief while our defense held water. Then U+U dropped their tactical bombshell. By including important messages on the back of the cereal box, Product 19 was qualifying itself as a “nutritionally-enhanced morningtime magazine.” Ink 19 was “blatantly enumerating itself in a manner designed to confuse the consumer of early-day mealtimes and information.” Even worse, U+U filed a motion with the FDA reporting our lack of consistent adherence to their “Nutrition Facts” guidelines, citing specific instances where we used words that were still years from gaining the agency’s approval for general consumption.
The legal fees have mounted and escalated and multiplied several times. By our calculation, you would have to eat 3,421,412 bowls of Ink 19 to equal the litigation expense of a Product 19. And we’re not even counting the cost of milk. We’ve done our best to persevere against these forces, but truth is that a 9-year-old magazine simply cannot prevail against a century-old maker of quick-consumption carbohydrates. It’s been a lot of fun, but it’s become impossible to continue funding this magazine against the terrifying behemoth that is The Kellogg Company. We thought the music industry was tough, but it’s nothing compared to the Breakfast Foods biz. ◼