In another in a long line of trademark imitation cases, Kellogg North America Co. LLC has filed a trademark and trade dress infringement lawsuit against a small Ohio-based food truck named L’eggo My Eggroll, arguing that the truck’s name and branding unlawfully copy Kellogg’s iconic L'EGGO MY EGGO trademark. According to Kellogg’s complaint, the food truck not only mimics the language of its well-known slogan but also borrows visual elements, including similar colors and fonts associated with Kellogg's EGGO® waffles.

The dispute raises an increasingly common question in trademark law: When does imitation cross the line from parody into infringement?

The First Amendment does protect parody, including in the trademark context, as a form of expression. A parody typically imitates a brand in a humorous or critical way that makes clear the original brand is not involved. However, courts have held that parody does not excuse trademark infringement if the use is likely to confuse consumers about the source, sponsorship, or affiliation of the goods or services.

In addition to traditional infringement, Kellogg has also asserted a claim for trademark dilution, which does not require proof of consumer confusion. Under the federal Trademark Dilution Revision Act, owners of famous marks can challenge uses that blur the distinctiveness of the mark or tarnish its reputation, even without confusion. Given the long-standing recognition of the EGGO and L'EGGO MY EGGO  brands and their association with Kellogg, the food truck’s use of a nearly identical slogan and similar visual elements may support a dilution-by-blurring claim. If the court agrees that Kellogg's marks are famous and that the food truck’s branding impairs their uniqueness or commercial strength, Kellogg could prevail even without showing that consumers are misled.

In 2023, the U.S. Supreme Court directly addressed the tension between trademark rights and free speech in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), known as the “Bad Spaniels” case. There, a dog toy designed to resemble a Jack Daniel’s whiskey bottle used playful and irreverent language that made a joke using the original brand (though the joke wasn't aimed directly at that brand). The Court held that the parodied use of another’s mark as its own source identifier is not automatically protected. In such cases, the standard trademark analysis applies.

The Bad Spaniels case also drew an important distinction between two types of parody. One type uses a famous brand as the object of the joke, often commenting directly on the brand itself. The other uses the brand simply to remind consumers of the original and take advantage of its recognizability and built-in appeal. The first type may be entitled to greater protection under the First Amendment. The second, which simply borrows the fame of another without adding commentary, is far less likely to be viewed as protected expression.

That distinction may be central to the Kellogg case. While “L’eggo My Eggroll” may sound playful, Kellogg argues that the food truck is not parodying or commenting on the EGGO brand. Instead, the company claims the truck is using the name and look to attract customers and benefit from the EGGO brand’s established goodwill. That type of use, under current law, is more likely to be considered infringement than fair or protected speech.

Kellogg appears to have tried to resolve the dispute informally, offering the small business time to rebrand. According to the complaint, the food truck instead demanded a buyout and refused to change its branding and threatened retaliatory action. That posture may limit any equitable arguments the business might otherwise make.

Trademark law does not prohibit humor or clever wordplay, but it does draw the line when branding is used in a way that misleads consumers or exploits another company’s reputation. The outcome of this case will likely depend on whether the court views L’eggo My Eggroll as a legitimate joke or a calculated attempt to ride the coattails of a well-known brand. Chances are, the joke will be on the food truck.

Given the legal risks, businesses are well advised to steer clear of using others’ famous trademarks in their branding, especially when the goal is to attract attention by invoking the original brand’s recognition or goodwill.