Kellogg Co. v. Exxon Corp.
United States Court of Appeals for the Sixth Circuit
209 F.3d 562 (2000)
Kellogg (plaintiff) registered its "Tony the Tiger" trademark in 1952; Exxon (defendant) began using its own cartoon tiger mark in 1959, registering it in 1965 while selling only petroleum products. Exxon opened its first convenience store in 1984 and, starting in the early 1990s, rapidly expanded "Tiger Mart" convenience stores selling food and beverages under the same cartoon tiger mark, growing from eight to 265 stores between 1992 and 1996. Kellogg sued in 1996 for trademark infringement and dilution; the district court granted Exxon summary judgment, finding Kellogg had acquiesced by not opposing Exxon's registration or renewal, and finding progressive encroachment inapplicable because the companies weren't direct competitors. Kellogg appealed.
Whether, in a trademark-infringement case, progressive encroachment defeats an acquiescence defense if a likelihood of confusion results from the defendant's gradual transition into the plaintiff's market.