Shedded wheat sparked the the Kellogg Cereal Lawsuit Zach Hiller LawTrademarks are not a new invention; they have been protecting brands in the U.S. for over 100 years. In that time there have been many famous trademark disputes, and one such intellectual property battle that went down in history is the Kellogg Co. V National Biscuit Co. case. Kellogg Co. (known as The Battle Creek Toasted Corn Flake Company) at the time, fought for the rights to make pillow-shaped shredded wheat cereal.

In 1893, Henry Perky made a product that took off despite being called a “cereal that was like a whisk broom or shredded doormat” by some. After Perky died in 1908, his patents on the biscuits and machinery of his cereal expired in 1912. Free from potential patent violations, The Kellogg Company then made a similar cereal, Shredded Wheat. In 1930 The National Biscuit Company, a successor of Henry Perky’s company, filed a lawsuit against Kellogg, arguing that the new product was a trademark violation. Kellogg claimed the lawsuit was an attempt for National Biscuit Company to monopolize the market of shredded wheat cereal.

The conundrum over shredded wheat

After winding through the courts, the case was brought to the Supreme Court eight years later. The high court ruled in favor of the Kellogg Company on the grounds that the term “shredded wheat” could not be trademarked because shredded wheat is simply the process in which it is produced. Since the process was basically open-source (to use a modern parlance) as the patent had expired in 1912, it was free for anyone to use. The Court therefore forcefully applied the principle that once a patent has expired, its benefits can be freely enjoyed.

The Kellogg Cereal Lawsuit is possibly the Supreme Court’s most influential trademark decision. Kellogg has become a foundation of the functionality doctrine-that product designs that are essential to functionality cannot be protected with trademark laws. That would hinder the ability of competitors to make a contending product.

It’s interesting how a dispute over pillow-shaped breakfast cereal changed trademark law forever.

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