WASHINGTON — The Supreme Court refused Monday to referee a cat fight between the oil company that puts a "tiger in your tank" and the cereal maker whose Frosted Flakes are described as "grrreat!" by Tony the Tiger.
Instead, the high court sent the trademark dispute to a trial judge to decide whether consumers are sometimes confused about the two famous tigers.
Four years ago, cereal maker Kellogg Co. sued Exxon when the oil giant started selling food products in its Tigermart convenience stores. The stores featured Exxon's friendly cartoon tiger and the cereal maker said that consumers might think its products are sponsored by Kellogg.
"It's one thing when their tiger is selling gasoline. But when their tiger is selling food and beverages, that's something else," said Daniel S. Mason, a San Francisco attorney who represents Kellogg. He cited a company survey that found one in four consumers thought the cartoon tiger on the Exxon beverage cup meant the product was Kellogg's.
"We think that's farfetched," responded Louis T. Pirkey, an Exxon attorney from Austin, Texas. "We think consumers know the difference between Tony the Tiger and the Exxon tiger."
The trademark dispute illustrates how companies are increasingly going to court to protect their brands and images. A trademark is supposed to identify the product's owner and a company can sue a competitor for damages if its promotions might confuse consumers about the source of the product.
The tigers made their debuts during the early days of television. In 1952, Kellogg began using "Tony the Tiger" to promote its Frosted Flakes. "They're grrreat!" the tiger said in television ads. The cereal maker registered Tony as a trademark. In 1959, the Standard Oil Co. began using its cartoon tiger to promote its Esso gasoline. During what Exxon calls "30 years of peaceful coexistence," the two tigers promoted their separate products without interference.
Kellogg says all that changed when Exxon moved into the business of selling grocery products.
In its appeal to the Supreme Court, Exxon said that Kellogg had waited too long to bring its trademark infringement claim. "If Kellogg had any legitimate objections, it was grossly remiss in failing to voice them earlier," Exxon said.
But in a one-line order, the justices rejected the claim in the case (Exxon Mobil vs. Kellogg Co., 00-252). Lawyers said that a trial is set to begin Jan. 16 in Memphis, Tenn.
Meanwhile, the justices put off a decision in another high-stakes dispute involving oil companies in California. Arco, Chevron Corp. and other gasoline retailers are urging the high court to reject Unocal's patent for reformulated gasoline, saying that it costs California's motorists as much as $100 million more per year.
The high court asked the Justice Department to weigh in on the issue first. That likely will put off for months a decision on the appeal (Arco vs. Union Oil Co., 00-249).