Inside One Band’s Absurd, Infuriating Legal Nightmare
Earlier this year, Post rolled out a new “anytime, anywhere” cereal line in test markets across the U.S. In a radical break from two centuries of breakfast tradition, the four flavors (Cocoa Pebbles, Fruity Pebbles, Honey Bunches of Oats Almond, and Honey Bunches of Oats Honey Roasted) are packaged in tiny cups and merely require you to add in a bit of water to hydrate the powdered milk inside. “It’s the easiest way to enjoy cereal during those busy, on-the-go mornings,” Post boasts. “No milk required!”
As the father of two young kids, musician Damian Kulash wasn’t all that impressed by the idea of a milk-free, instant cereal. “I’m very conscious about what goes into those two little bodies,” he says. “Cereal as it already exists is just puffed-rice sugar bombs. But they somehow found a way to make it even more synthetic and processed. It feels like a satire, almost like WALL-E.”
But he had an even bigger problem. Post’s new hyper-convenient portable cereal line is called OK GO! — just a tiny punctuation mark away from OK Go, the name of the alt-rock band that Kulash has led since the late Nineties. Kulash had his legal team contact the cereal company as soon as he heard of their plans, a few months before the breakfast cups hit shelves. He hoped they could reach some kind of resolution. Instead, he says, after offering them a nominal fee to drop the matter, Post sued the band in Minnesota federal court. “Their assumption is that they can just keep forcing us to spend money on lawsuits until we go away,” says Kulash. “It’s corporate bullying.”
Back in 2011, the relationship between Post and OK Go was in a much better place. The cereal company hired the band that year to act in an astoundingly unfunny YouTube video promoting Honey Bunches of Oats where they magically appear in the break room of a cereal factory and interact with manic employees named Honey and Joy. The band is arguing now that their past association with Post would suggest to consumers that they’re somehow involved with this new cereal line.
Post’s legal team rejects that idea. “Given the length of time that has passed since that limited collaboration over a decade ago,” the company writes in a statement, “the very small number of views indicated on the YouTube videos you referenced, and the general consuming public’s rather short attention span, it will also have absolutely no bearing on consumer perception of Post’s mark OK GO! used with cereal or cereal-based snacks, and will not lead to any mistaken association with OK Go.”
They aren’t wrong to note the “very small number of views” for the video. It’s been viewed a mere 3,200 times since 2011. “We’re more embarrassed about that video than they are,” says Kulash. “But we didn’t create it. We just showed up. Have you seen how bands make their money recently? People don’t buy records. If someone is going to pay you to be in a show, you do it.”
This has been the central philosophy of OK Go ever since they broke out in 2006 thanks to the treadmill theatrics in the video for their song “Here It Goes Again.” (That one has 61 million views and counting on YouTube.) The record industry was in a death spiral at the time thanks to file sharing, and Kulash says that forced them to make some tough choices.
“We realized we could do things our way and deal directly with brands,” says Kulash, “or we could maintain our snooty aloofness that we weren’t ‘sell-outs,’ but deal with major labels. It was a long and difficult debate, and we came out very far to one side of it. We were like, ‘We’re going to deal with the corporate demon directly, since it will give us some control.'”
They licensed out nearly every song from their 2010 album Of the Blue Colour of the Sky to commercials and TV shows. In the years that followed, they teamed up with Chevrolet, State Farm, Morton Salt, and many other major brands to fund their increasingly elaborate videos that promoted both their music and whoever was willing to bankroll it. “We’ve worked with everyone under the sun,” says Kulash. “It’s allowed us to make videos that no label or band could afford.”
He first became aware of Post’s actions late last year, when the cereal company attempted to trademark the name OK GO! His first instinct was to reach out to the cereal company: “We were like, ‘Should we do a video together?'”
Kulash says they came back with an offer that was shockingly low. “It was essentially a no,” he says. “We responded by saying something like, ‘Let’s talk about ideas before we get into numbers.’ A day or two later, they sued us.”
“My suspicion,” he continues, “is that their lawyers or marketing people didn’t actually look at what they were doing when they picked this name. Then they went, ‘Oh my God, we’re using the name of a band we’ve worked with before on marketing. We’re already too deep into this thing to get out of it. They’re going to sue the bejesus out of us. So we’ll pre-sue them in Minnesota. That’ll make it harder and more expensive for them.'”
In a statement to Rolling Stone, Post presents the matter in a significantly different light: “Post is not seeking to stop the band OK Go from using its name in any way. Instead, we are simply asking a court to find that Post is legally able to use the words OK GO! on its new breakfast cereal product. Trademark law allows companies to use the same words on different types of goods and services — just like the word DELTA is used for faucets, air travel, and dental insurance. Post reluctantly initiated this lawsuit when our attempts to resolve this matter amicably were rejected and the band OK Go continued to threaten to sue Post in federal court.”
Kulash is familiar with Post’s argument about the multiple Delta corporations. “I just googled ‘Ok Go,’” he says. “You get, like, 1,000 hits in before you get to something not about our band. And yes, ‘OK’ is common and ‘Go’ is common, but it’s not a common name. Furthermore, can you imagine a collaboration between Delta Dental and Delta Airlines? There is no universe where that is going to happen. But every cereal since our parents were four years old has marketed itself through collaborations with pop-culture figures, whether it’s sports figures or, in Post’s case, Pebbles [from The Flintstones]…. Snoop Dogg just announced he’s doing his own cereal!” (In fact, the rapper’s original plan to sell cereal under the name Snoop Loopz ran into its own trademark issues last year; that product is now called Snoop Cereal — and distributed by Post.)
While lawyers try to sort through this mess, Kulash has been busy recording OK Go’s follow-up to their 2014 LP Hungry Ghosts. They were about halfway done with it when they had to take an 18-month break so Kulash and his wife, Kristin Gore, daughter of former Vice President Al Gore, could co-direct the upcoming Apple movie The Beanie Bubble. Starring Zach Galifianakis, Elizabeth Banks, Sarah Snook, and Geraldine Viswanathan, the film chronicles the mid-Nineties Beanie Baby phenomenon. It’s based on Zac Bissonnette’s 2015 book The Great Beanie Baby Bubble: The Amazing Story of How America Lost Its Mind Over a Plush Toy — and the Eccentric Genius Behind It.
“It was one of the biggest, most absurd speculative crazes in American history,” Gore tells Rolling Stone. “The fact that it involved these little five-dollar bean-bag animals that people treated like gold for three years was insane. It came about because it coincided with eBay and the rise of the Internet.”
The movie isn’t focused directly on the Beanie Babies themselves. “It was more a fun opportunity for us to tell a story about what America values,” says Gore. “We talk about it as being a funeral for the American dream, but a New Orleans-style parade through the French Quarter. That’s the feeling it has, since our cast is so fantastic. We want to understand for ourselves how we got to where we are now.”
When the film wrapped, Kulash was free to revisit the songs that OK Go had already cut for the next record. The experience gave him a whole new perspective on the project. “I don’t ever get to go back and revisit songs later and be like, ‘Oh, this is what we got wrong’ and go back and fix it,” he says. “We’re working on that now.”
They’re already plotting out two different music videos to promote the album. “We don’t have any way to pay for them,” Kulash admits. “But we’re hoping we’ll figure that out as we go.”
In theory, if the lawsuit is resolved in the near future, could Post play a role in a future OK Go video as part of a settlement agreement? “There’s probably too much animus between us for that to happen,” Kulash says. “They’ve been as insulting as they can figure out a way to be through legal filings. It’s also not a product we’d go out of our way to associate with. But I guess there are worse evils in the world.”