OK Go has no problem with brands.
Over the years, the band has worked with companies like State Farm, Chevrolet and Morton Salt to create elaborate music videos that reliably go viral, earning a slew of advertising awards along the way.
But for the last few months, the band’s lawyers have been in an escalating fight with one brand in particular — Post Foods — over a new grab-and-go cereal product called, naturally, OK GO!
The band accuses Post of infringing on its trademark, which it has held since 2008. On Jan. 13, Post went to court, asking a federal judge in Minnesota to declare that the cereal does not violate the band’s rights.
“It’s enraging… It seems like such cut-and-dry bullying,” said Damian Kulash, the band’s lead singer and guitarist, in an interview. “There are so many other things you could call your fucking cereal. Just pick one. Nobody looks good in this. Just pick a new name.”
Trademark fights turn on the concept of “likelihood of confusion,” which can dilute the power of a trademark. Courts analyze a series of factors, including the strength of the plaintiff’s mark and the degree of competition between the two products, in deciding whether consumers might be confused.
In its complaint, Post has asserted that there is no likelihood, because Post makes “high-quality, delicious cereal products,” while OK Go is a rock band. The band’s lawyers have countered that consumers will wrongly believe that OK Go has endorsed the cereal.
Kulash argued that the band has spent decades developing a distinct image that many brands — including Post itself — have paid handsomely to associate themselves with. For each album, the band picks a handful of sponsors, and then spends months crafting music videos that convey a “wholesome type of amazement,” he said.
“I think it is a sense of resourcefulness, exuberance, and I guess the best word for it is creativity,” Kulash said. “The thing we make is a little dollop of joy and wonder and happiness in your life. We made this ornate, over-the-top thing, so you could experience some little moment of joy. That little jolt of dopamine — ‘What a cool little thing I got today’ — I think that’s a very popular thing for brands to want.
“What they want is that sort of just-out-of-reach quality of things that are slightly better than real life, where things work out a little better,” he said. “It’s a great brand to have and one we’re not going to give away for free.”
The band’s trademark lawyer, Alex Kaplan, argued that Post’s actions have diluted the band’s trademark.
“It’s loss of control of their mark and their brand,” Kaplan said. “It’s definitely loss of any opportunity to work with any other cereal or other food company.”
Post introduced the OK GO! product in January. It includes one of four Post cereals in a cup with powdered milk, and consumers can add cold water to get a bowl of cereal on the go.
In a statement, Post said that it filed the lawsuit reluctantly, after efforts to resolve the dispute amicably went nowhere.
“Our general policy is to not comment on pending litigation,” the company said. “However, we do want to clarify that Post is not seeking to stop the band OK Go from using its name in any way. Instead, we are simply asking a court to find that Post is legally able to use the words OK GO! on its new breakfast cereal product. Trademark law allows companies to use the same words on different types of goods and services — just like the word DELTA is used for faucets, air travel, and dental insurance.”
Post’s lawyers have also stated in their complaint that Post offered to pay for a brand collaboration/co-marketing arrangement, but that the band refused. Kulash and his attorney disputed that characterization.
“No offer was made,” Kulash said.
The band is in the middle of working on a new record, with accompanying videos, and Kulash is also working on a feature film.
“I’m working my ass off on creative work that I love doing,” he said. “This is a shitty waste of time. It feels so petty.”