*

The Honorable James G. Carr, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0241P (6th Cir.)

File Name: 03a0241p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

KELLOGG 

COMPANY,

Plaintiff-Appellant,

v.

TOUCAN 

GOLF, INC.,

Defendant-Appellee.

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No. 01-2394

Appeal from the United States District Court

for the Western District of Michigan at Kalamazoo.

No. 99-00091—Wendell A. Miles, District Judge.

Argued: May 6, 2003

Decided and Filed: July 23, 2003 

Before: SUHRHEINRICH and COLE, Circuit Judges;

CARR, District Judge.*

_________________

COUNSEL

ARGUED: Daniel S. Mason, ZELLE, HOFMANN,VOELBEL, MASON & GETTE, San Francisco, California,

2 Kellogg Co. v. Toucan Golf, for Appellant. Gerard MaASSOCIATES, Troy, Michigan, f

Daniel S. Mason, Christopher HOFMANN, VOELBEL, MAFrancisco, California, for AppeMANTESE & ASSOCIATES, Conway, Detroit, Michigan, for A

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OPINION

____________

SUHRHEINRICH, Circuit Ju

Kellogg Company appeals froaffirmation of the Trademark T(TTAB) decision to permit the reg“Toucan Gold” by Defendant-Ap(TGI), a manufacturer of promotio

Kellogg claims that TGI’s word m

toucan logo create a likelihood of the distinctiveness of, Kellogg’s fivincontestable “Toucan Sam” logos Lanham Act as amended, 15 U.S.C

We affirm the decision of the 

Kellogg’s claims. TGI’s use of Gold” does not create a likelihconsumers, principally because TGindustry far removed from that otoucan logo, as a realistic toucan likelihood of confusion with K“Toucan Sam” designs. Furthepresented any evidence that TGI’dilutes the fame or distinctiveness 
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 3

1In 1964, the USPTO was known as the United States Patent Office.

I. Facts

Kellogg, a Delaware corporation based in Battle Creek,

Michigan, is the largest producer of breakfast cereal in theworld. On July 24, 1963, Kellogg first introduced ToucanSam on boxes of “Froot Loops” cereal. Kellogg has usedToucan Sam on Froot Loops boxes, and in every print andtelevision advertisement for the cereal, since. Toucan Sam isan anthropomorphic cartoon toucan. He is short and stoutand walks upright. He is nearly always smiling with apleasant and cheery demeanor, but looking nothing similar toa real toucan. He has a royal and powder blue body and anelongated and oversized striped beak, colored shades oforange, red, pink, and black. He has human features, such asfingers and toes, and only exhibits his wings while flying.Moreover, in television advertisements over the past fortyyears, Toucan Sam has been given a voice. He speaks witha British accent, allowing him to fervently sing the praises ofthe cereal he represents, and to entice several generations ofchildren to “follow his nose” because “it always knows”where to find the Froot Loops.

Kellogg is the holder of five federally-registered Toucan

Sam marks at issue in this case. The first was registered onAugust 18, 1964, under United States Patent and TrademarkOffice1 (USPTO) Reg. No. 775,496, and consists of asimplistic toucan design, drawn with an exaggerated, stripedbeak, standing in profile with hands on hips and smiling, asreproduced below: 

4 Kellogg Co. v. Toucan Golf, The second mark was registered USPTO Reg. No. 1,270,940, anversion of the same toucan, standmouth open widely; and pointiupward: The third mark is for the word mmark was registered on June 18, No. 1,343,023. The fourth mark, reunder USPTO Reg. No. 1,840,74Toucan Sam flying, with wings sp
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 5

The fifth mark, registered January 31, 1995, under USPTOReg. No. 1,876,803, is essentially the same drawing as in thefourth mark, except unshaded, as reproduced below: Together the five registrations indicate that Kellogg’s marksare for use in the breakfast cereal industry, and on clothing.

In 1994, Peter Boyko created TGI, an Ohio corporation

with its principal place of business in Mansfield, Ohio, withhis wife, Janice Boyko, and daughter. TGI is a manufacturerof golf equipment, mainly putter heads. TGI creates putterheads from polycarbonate plastics, purchases shafts and gripsfrom outside sources, and then assembles and sells theputters. Principally, TGI’s clientele consists of companieswho use TGI’s goods as promotional gifts at charity events.For this purpose, TGI prints the name or logo of its client onthe putter head or other piece of equipment being sold. TGIrarely, if ever, sells directly to retailers or the public.

6 Kellogg Co. v. Toucan Golf, 

TGI likewise uses a toucan draw

or “Lady GolfBird,” to represent itthis logo on letterhead, business caon the outside of its building in Mmulti-colored body, and TGI dispof color schemes for different purpshe has a long, narrow, yellow bdisproportionate to or unlike that ois always seen perched upon a gobranch. She has no human fresembles a real toucan in all aspvariable body coloring:

TGI has not registered its GolfB

On December 15, 1994, however, use” application with the USPTO fGold.” The application, as later amark in relation to “golf clubs and gTGI planned to use the mark for which consist of a putter head on a August 29, 1995, the USPTO publiopposition. Kellogg filed an opasserting that TGI’s proposed use ofor golf-related merchandise inToucan Sam marks under the Llikelihood of consumer confusionTTAB dismissed the opposition w

On July 16, 1999, Kellogg appe

the district court below, and com
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc.

7

under 15 U.S.C. § 1071(b). In its complaint, Kellogg againclaimed that TGI’s use of the word mark “Toucan Gold”created a likelihood of confusion among consumers withrespect to Kellogg’s Toucan Sam word mark. Kellogg addeda likelihood of confusion claim with respect to the GolfBirdlogo as well. Furthermore, Kellogg added a dilution claimunder the Federal Trademark Dilution Act of 1995 (FTDA).See 15 U.S.C. §§ 1063 and 1125(c). On September 6, 2001,

after a four day bench trial, the district court dismissedKellogg’s complaint. The judgment was then entered onSeptember 10. The court found that confusion was highlyunlikely, principally because Kellogg is in the business ofselling cereal, whereas TGI is in the business of sellingputters. Moreover, the court found no dilution because theparties’ marks are “visually and verbally distinct.” Kelloggfiled a notice of appeal on October 4, 2001, and this matter istimely before this Court pursuant to Fed. R. App. P.4(a)(1)(A).

II. Standard of Review and Jurisdiction

The TTAB “may refuse to register a trademark that so

resembles a registered mark ‘as to be likely, when used on orin connection with the goods of the applicant, to causeconfusion, or to cause mistake, or to deceive.’” Recot, Inc. v.

Becton, 214 F.3d 1322, 1326 (Fed. Cir. 2000) (quoting 15U.S.C. § 1052(d)).

The federal courts have jurisdiction over appeals from the

TTAB. A party who lost before the TTAB may appeal thedecision to the United States Court of Appeals for the FederalCircuit under a “substantial evidence” standard of review.See, e.g., In re Thrifty, Inc., 274 F.3d 1349, 1350 (Fed. Cir.2001). Otherwise, a party may appeal the TTAB decision, tobe reviewed de novo, to the United States District Court inany district where venue is proper. 15 U.S.C. § 1071(b)(1).A disappointed party may present new evidence before thedistrict court that was not presented to the TTAB. Dickinson

8 Kellogg Co. v. Toucan Golf, v. Zurko, 527 U.S. 150, 164 (1999

latter route.

We review the district court’s l

but review its factual conclusioMcLaughlin v. Holt Pub. Schs. Bd669 (6th Cir. 2003).

III. Analy

Essentially, Kellogg seeks to bl

“Toucan Gold” word mark, commercial use of both the word mTo this end, Kellogg asserts thaviolation because there exists a likebe confused as to the source of TGKellogg asserts that, regardless oTGI’s use of its marks dilutes the and therefore TGI is in violation o

A. Likelihood of C

In order to show trademark infrin

Act, and that TGI is not entitled to show that TGI’s use of its mcommerce” of a “reproduction, couimitation of a registered mark in offering for sale, distribution, or aservices on or in connection with wcause confusion, or to cause mistaU.S.C. § 1114(1); see also TaubmF.3d 770, 774 (6th Cir. 2003).

This Court has established 

determining when a likelihood of the origins of two products. Thermoscan, Inc., 295 F.3d 623Daddy’s Junky Music Store, IncMusic Center, 109 F.3d 275, 280 Restaurants, Inc. v. Elby’s Big Bo
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc.

9

(6th Cir. 1982). The factors are: (1) the strength of theplaintiff’s mark; (2) the relatedness of the goods or servicesoffered by the parties; (3) similarity of the marks; (4) anyevidence of actual confusion; (5) the marketing channels usedby the parties; (6) the probable degree of purchaser care andsophistication; (7) the defendant’s intent; and (8) thelikelihood of either party expanding its product line using themarks. Therma-Scan, 295 F.3d at 630; Daddy’s Junky MusicStores, 109 F.3d at 280; Frisch’s Restaurants, 670 F.2d at648. Not all of these factors will be relevant in every case,

and “[t]he ultimate question remains whether relevantconsumers are likely to believe that the products or servicesoffered by the parties are affiliated in some way.”Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931F.2d 1100, 1107 (6th Cir. 1991). Thus, the question here, asin all trademark cases, is whether we believe consumers ofTGI’s golf equipment are likely to think it was manufacturedby Kellogg. See, e.g., Taubman Co., 319 F.3d at 776 (stating

that the only relevant question is whether there is confusionas to the origin of the respective products) (citing Daddy’s

Junky Music Stores, 109 F.3d at 280). None of the factors isdispositive, but the factors guide us in our ultimatedetermination. See Landham v. Lewis Galoob Toys, Inc., 227

F.3d 619, 627 (6th Cir. 2000).

1. Strength of Kellogg’s Marks

The first factor of the test focuses on the distinctiveness of

a mark and the public’s ability to recognize it. See ThermaScan, 295 F.3d at 631. In Daddy’s Junky Music Stores, we

recognized a spectrum of distinctiveness for trademarks,ranging from “generic” to “fanciful.” Daddy’s Junky MusicStores, 109 F.3d at 280-81. For example, the word “cereal”is generic, whereas the names “Xerox” and “Kodak” arefanciful, having been completely fabricated by the trademarkholders. See Eastman Kodak Co. v. Weil, 137 Misc. 506, 243N.Y.S. 319 (1930); see also Armstrong Cork Co. v. WorldCarpets, Inc., 597 F.2d 496, 505 (5th Cir. 1979); ArrowDistilleries, Inc. v. Globe Brewing Co., 117 F.2d 347, 349

10 Kellogg Co. v. Toucan Golf, (4th Cir. 1941) (giving as other ex“Aunt Jemima” and “Rolls RoyceCo. v. Rigney & Co., 247 F. 407, 4

We find the “Toucan Sam” word 

fanciful. Kellogg completely crSam.” Kellogg also completely logo design. He does not resemble shape, coloring, size, and demeano

of Kellogg, and not reminiscent of Therefore, as a logo, he is aldistinctive.

In further support of the strength 

Kellogg has submitted survey in94% of Americans recognize Tchildren who recognize him corLoops. Moreover, Kellogg has sudetailing the massive amount of expended in regard to the markeFroot Loops. We need not delve i

find the fact that Kellogg is the laworld, that Froot Loops is one of ithat Toucan Sam has appeared in advertisement for Froot Loops sincthat Toucan Sam is visualloverwhelming cross-section of Coupling that with his distinctivenstrong mark.

2. Relatedness of th

In consideration of the second fa

relatedness of the goods and serviWe have established three berelatedness of parties’ goods and secompete directly, confusion is sufficiently similar; second, if thsomewhat related, but not competi
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 11

confusion will turn on other factors; finally, if the productsare unrelated, confusion is highly unlikely. Therma-Scan,295 F.3d at 632; Daddy’s Junky Music Stores, 109 F.3d at282.

TGI makes golf equipment, mainly putter heads. TGI also

sells bag tags, divot tools, and full sets of clubs, but has neversold any merchandise unrelated to golf. 

Kellogg is primarily a producer of breakfast cereal, but has

branched off from cereal and sold products in other industrieson a limited basis. It has also at times licensed its name andcharacters to outside companies. Kellogg asserts before thisCourt that it has sufficiently entered the golf equipmentindustry. In support of this claim, Kellogg presents a catalog,wherein it offers for sale golf balls and golf shirts on whichis imprinted the picture of Toucan Sam. Moreover, Kellogghas presented a mass-marketed 1982 animated televisionadvertisement wherein Toucan Sam is portrayed soliciting hisFroot Loops on a golf course, and interacting with a golfplaying bear. Kellogg claims these materials indicate that theToucan Sam marks are related not only to the manufacture ofbreakfast cereal, but to the golf equipment industry as well.

However, Kellogg, although it is the largest producer of

breakfast cereal nationally, has not presented evidence that itsgolf “equipment” has been marketed nationally. The golfballs and shirts are available on a limited basis, either throughthe aforementioned catalog— which is not widelydistributed— or through select local theme stores, such asKellogg’s own “Cereal City” in Battle Creek, Michigan.Moreover, the commercial in which Toucan Sam plays golfis nonetheless an advertisement for Froot Loops, not golfequipment. The district court found that Kellogg’s presencein the golf industry was insignificant, and nothing more thana marketing tool to further boost sales of its cereal. Weagree. We find that one thirty second advertisement does notrender Toucan Sam a golfer, nor does a novelty catalog makeKellogg a player in the golfing industry. In any event,

12 Kellogg Co. v. Toucan Golf, trademark law is grounded on a standard. We find that no consumewith top-line golf equipment baselimited licensing of its characters obelieve that if any consumers ever Toucan Sam with golf based on thighly unlikely that they would stithe advertisement last aired. We completely unrelated. And under thin this Circuit, the second facconclusion that confusion is not likScan, 295 F.3d at 632 (stating unlikely where goods are complet

3. Similarity of t

Kellogg argues that it can prove 

notwithstanding the unrelatednespresented several cases to demonsfor trademark owners relying heavmarks, even where the parties’ product markets. See, e.g., Recot, likelihood of confusion between “Feven though one is used for snack dog food); Hunt Foods & IndusCorp., 367 F.2d 431, 435 (C.C.P.Afor canned goods and “Hunt” confusingly similar); American Andreassen, 296 F.2d 783, 784 

“Domino” for sugar and “Dominosimilar); Yale Elec. Corp. v. RoberCir. 1928) (finding “Yale” foconfusingly similar); Quality Inns Corp., 695 F. Supp. 198, 221-22 similarity between “McSleep trademarks); John Walker & Son

Supp. 1302, 1307-08 (D.S.C. Walker” whiskey and “Johnny Wsimilar). But each of these cases i
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 13

2It is also of note that in each of the cases cited by Kellogg, the

infringed upon trademark was the actual name of the senior user’s product.Here, Kellogg claims that TGI has infringed only upon the name of acharacter that represents Kellogg’s product. This would again be a

different case if TGI had named itself “Froot Loops Golf” or somederivative thereof.

of the cases cited by Kellogg, the courts did find that the

goods were related. See, e.g., Recot, 214 F.3d at 1328(finding that some snack chip makers might also make dogfood); Hunt Foods, 367 F.2d at 434 (finding a relationship

between the respective products); American Sugar Refining

Co., 296 F.2d at 784 (finding goods related because both aresold at grocery stores); Yale Elec. Corp., 26 F.2d at 974

(finding locks and flashlights related because “the trade hasso classed them”). In the other cases cited by Kellogg, thenames, as well as other marks, were either not only similar,but substantially identical, see John Walker & Sons, 305 F.

Supp. at 1307-08 (comparing “Johnnie Walker” whiskey to“Johnny Walker” hotels and finding infringement wheredefendant also used same color scheme and same script); orthe similar portion of the senior mark was both famous andfanciful, and thus so distinctive that its use would transcendits market.2 Cf. Recot, 214 F.3d at 1328 (stating that “Frito

Lay” word mark “casts a ‘long shadow which competitorsmust avoid’”) (citations omitted); Quality Inns, 695 F. Supp.

at 216-21 (intimating that the prefix mark “Mc” used byMcDonald’s is highly distinctive in regard to anything butsurnames).

But here, the parties’ goods are completely unrelated, and

the “Toucan Sam” and “Toucan Gold” word marks aresimilar only in that they each contain the common word“toucan.” Although the name “Toucan Sam” is itself fancifuland distinctive, use of the word “toucan” for cereal is merelyarbitrary. Kellogg has taken an everyday word and applied itto a setting where it is not naturally placed. See, e.g.,Daddy’s Junky Music Stores, 109 F.3d at 280-81 (recognizingdistinctiveness spectrum and stating that a mark is arbitrary

14 Kellogg Co. v. Toucan Golf, 

when it is an everyday name or product it represents, such as ““Apple” for computers). As oppoarbitrary mark is distinctive only and entitled to little or no protectio

e.g., Amstar Corp. v. Domino’s Piz(5th Cir. 1980) (implying that “Domino” is entitled to no protecticondiments market). Thus, unlike 

Sons, and Quality Inns cases, hedistinctive portion of KelloggAdmittedly, we would have a faattempted to use a mark such as “line of products, because the “Toucentirety, is fanciful and likely trasame way “Frito Lay” and the “Mc

F.3d at 1328; Quality Inns, 695 F.

has not cornered the market on common bird name “toucan” in c“Toucan Sam.” In regard to apparently similar use is therefore the unrelatedness of the goods.

As for the logos, the actual Touc

Hence, in step with cases like Resimilar to Toucan Sam’s design, thviolation in spite of the unrelatGolfBird dissimilar to Toucan Sareal toucan. She has the look and pone would encounter in the anthropomorphic, with a discolorbody type is not the same as that smiles and has several other humfind no similarity between Toucan 
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 15

3A set of Toucan Gold clubs costs $1500.

4. The Other Confusion Factors

The other five factors can be disposed of quickly. Kellogg

has presented no evidence of actual customer confusion.Thus, we need not consider that factor.

The parties do not use similar avenues of commerce.

Kellogg distributes Froot Loops through regular wholesaleand retail channels. Kellogg advertises its product nationallyon television and in print. Conversely, TGI distributes itsproduct primarily at trade shows and over the internet. TGIdoes not sell its golf equipment via retail outlets or advertiseon television or radio. Cf. Hunt Foods, 367 F.2d at 435

(finding same channels of commerce because both goods aresold at grocery stores); American Sugar Refining Co., 296

F.2d at 784 (stating same).

TGI’s clientele is primarily, and almost exclusively,

comprised of corporations and wealthy golfers.3 We find

each of these groups to be sufficiently sophisticated, so as notto believe that Kellogg, a cereal company, has manufactureda golf club named “Toucan Gold.” Moreover, we find thetwo industries sufficiently separate, so that there will rarely,if ever, exist a consumer who is looking for Kellogg’sproduct in the golf equipment market.

Next, there is no evidence to suggest that Boyko chose his

toucan marks in order to dishonestly trade on Kellogg’smarks. Again, the goods are so unrelated as to dispose of thisfactor with little discussion. Boyko testified that he chose thename “toucan” because of any bird’s obvious connection tothe game of golf, as evidenced through golfing terms such as“eagle,” “birdie,” and “albatross.” The district court foundhis testimony on this issue credible, and Kellogg haspresented no evidence to cause us to doubt that Boyko’sintent was not dishonorable.

16 Kellogg Co. v. Toucan Golf, 

Lastly, there is no evidence to 

desire to enter the cereal game, or to begin manufacturing golf equipAs stated above, we do not blicensing of golf balls and golf slogo, nor the single 1982 advertisemparades around a golf course, annothe golf market, or its intention to 

Accordingly, we find no likelih

TGI’s use of its marks— the word its GolfBird logo; and Kellogg’s “Toucan Sam” and the Toucan Sam of the eight factors we find in favoof its marks. The products sold unrelated; the similarity between tdesigns is not enough to overcomTGI’s clientele is not the sort to manufactures golf clubs. We adistrict court and find no likelihoo

B. Diluti

Kellogg also raises claims of tra

FTDA of 1995. The FTDA amendto include a remedy for “dilutioU.S.C. § 1125. “Dilution” is defincapacity of a famous mark to idenand services.” FTDA § 4, 15 U

believes that TGI’s marks dilute thmarks, and that Kellogg may oppground and obtain relief under the rejected Kellogg’s argument.

Dilution law, unlike traditiona

law, does not exist to protect the p

likelihood of confusion standard, bquasi-property rights a holder has iand distinctiveness of his mark. 
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 17

Catalogue, Inc., 123 S.Ct. 1115, 1122 (2003); see also FTDA

§ 4, 15 U.S.C. § 1127. We have developed a five part test todetermine whether dilution has occurred under the FTDA: thesenior mark must be (1) famous; and (2) distinctive. Use ofthe junior mark must (3) be in commerce; (4) have begunsubsequent to the senior mark becoming famous; and(5) cause dilution of the distinctive quality of the senior mark.See, e.g., Kellogg Co. v. Exxon Corp., 209 F.3d 562, 577 (6thCir. 2000).

The first four factors are not in dispute and require no

discussion. The only factor before this Court is whether TGIhas diluted Kellogg’s Toucan Sam marks. The SupremeCourt has held that, under the plain language of the FTDA,for a plaintiff to show dilution, he must demonstrate actualdilution, and not merely the likelihood of dilution. Moseley,123 S.Ct. at 1124. 

The plaintiff need not show actual loss of sales or profit,

but the mere fact that customers might see the junior markand associate it with a famous mark does not establishdilution. Id. at 1124. In Moseley, the defendant created alingerie shop called “Victor’s Little Secret.” The owners ofthe more famous lingerie-related mark “Victoria’s Secret”sued under the FTDA. The Supreme Court held that theplaintiff’s claim failed, even though it presented evidence thatconsumers had associated the two marks. The plaintiff didnot present any empirical evidence that consumers no longerclearly understood to which products the “Victoria’s Secret”mark was related, and thus failed to demonstrate the“lessening of the capacity of the Victoria’s Secret mark toidentify and distinguish goods or services sold in Victoria’sSecret stores or advertised in its catalogs.” Id. at 1125.Likewise, here, Kellogg has presented no evidence that TGI’suse of its toucan marks has caused consumers no longer torecognize that Toucan Sam represents only Froot Loops. Infact, Kellogg’s own 1991 study indicated that 94% ofchildren recognize Toucan Sam and 81% of children relatehim to Froot Loops. Kellogg performed another study in

18 Kellogg Co. v. Toucan Golf, 1997— after TGI started businessthat 94% of adults likewise recognihas failed to present evidence population recognizes Toucan Sam Froot Loops in lesser numbers thausing its toucan marks. According

of the district court and deny Kell

Kellogg asks this Court for a rem

of the fact that the Supreme Coclarified the dilution standard aftecase. Kellogg believes it is entipresent empirical evidence of adistrict court. We find a remand ithe Supreme Court provided a strdilution than the likelihood of dpreviously employed by this CourtInc. v. Moseley, 259 F.3d 464 (6S.Ct. 1115 (2003). We find Kellevidence insufficient even to meet 

IV. Attorney’s Fees 

TGI has brought a separate m

attorney’s fees. Under § 35(a) prevailing party may recover attorcases.” 15 U.S.C. § 1117(a). Tbelow, but instead raises this isappeal. We have made clear in tattorney’s fees under § 35(a) is at tcourt alone. U.S. Structures, Inc. v

F.3d 1185, 1191-92 (6th Cir. 199issue with the district court, TGI’s also Paccar, Inc. v. Telescan Tech

243, 258 (6th Cir. 2003).

TGI also moves for “just damag

38. That rule provides:
No. 01-2394 Kellogg Co. v. Toucan Golf, Inc. 19

If a court of appeals determines that an appeal isfrivolous, it may, after a separately filed motion or noticefrom the court and reasonable opportunity to respondaward just damages and single or double costs to theappellee.

TGI’s argument that Kellogg’s appeal is frivolous is basedsolely on the contention that Kellogg’s arguments on appeal“mirror its arguments to the TTAB and the district court—and both tribunals rejected Kellogg’s arguments asuntenable.” Brief for Respondent, at 55. However, the factthat Kellogg has repeated the same argument that failedbelow does not necessarily render that argument frivolous.

Kellogg has aggressively sought to protect its marks over

the years. See, e.g., Exxon Corp., 209 F.3d 562; Kellogg Co.

v. Pack ’Em Enters., Inc., 951 F.2d 330 (Fed. Cir. 1991);Kellogg Co. v. Western Family Foods, Inc., 1980 WL 39054,209 U.S.P.Q. 440 (Trademark Tr. & App. Bd. Dec. 22, 1980);see also Bruce Walkley, Toucan Sam’s Cereal Killer,SYDNEY MORNING HERALD (Australia), July 27, 1999, at 3(recounting Kellogg’s complaints against a company makingfruit juice). And it has challenged smaller entities even whereit is likely that no trademark infringement claim exists. See,e.g., Sylvia Wieland Nogaki, Seattle Band Throws Kelloggfor a Loop, SEATTLE TIMES, Mar. 10, 1995, at A1 (describingKellogg’s battle with a small Seattle music band over thename “Toucans”). But although many of Kellogg’s claimsagainst smaller companies may border on excessive andarguably warrant sanctions, the Supreme Court decision inMoseley, setting forth and changing the standards fortrademark dilution in this Circuit, was not entered until afterbriefs were filed in this appeal. Therefore, we find sanctionsunder Fed. R. App. P. 38 inappropriate in this instance.

V. Conclusion

For the foregoing reasons, we AFFIRM the decision of the

district court.