Tony the tiger wins a round

WASHINGTON (AP) — Let the fur fly. Tony the Tiger can go to court against another well-known cartoon trademark: the tiger in the old ''Put a Tiger in Your Tank'' advertising campaign.

On Monday, oil giant Exxon Mobil Corp. lost a bid to head off a trial over whether its cartoon tiger violates cereal-maker Kellogg Co.'s trademark for Tony. The Supreme Court, without comment, let stand a lower court ruling that it isn't too late for Kellogg to make the trademark claim, even though both trademarked tigers have been around for more than 30 years.

Trial is set for Jan. 16 in federal court in Memphis, Tenn.

''We're pleased that we'll finally be able to present our case,'' Kellogg spokeswoman Chris Ervin said.

Kellogg contends Exxon retired its tiger in the 1980s, but then came out with new ads in the 1990s featuring a revised tiger promoting various food and convenience items sold at Exxon gas stations.

In a suit filed four years ago, Kellogg claimed the new tiger promotions infringe on the Tony trademark because Exxon was now using its unnamed tiger to sell food, not gasoline. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.

Shoppers can tell the difference, Exxon spokesman Tom Cirigliano countered Monday.

''The Exxon cartoon tiger has peacefully coexisted with a number of tiger trademarks, including Tony, for many, many years,'' Cirigliano said. ''We're quite confident that consumers recognize the Exxon cartoon tiger and do not confuse it with Tony the Tiger.''

He would not speculate on the financial consequences to Exxon if it loses and is required to stop using the tiger to sell food. Kellogg is not trying to stop Exxon from using the figure to sell gasoline.

Tony the Tiger debuted in 1952 and has appeared on every box of Kellogg's Frosted Flakes since. Between 1952 and 1995, the company sold $5.3 billion worth of the cereal, Kellogg said. Millions of children also know Tony as the cereal's gruff-voiced TV pitchman during Saturday morning cartoons.

Exxon, then known as Standard Oil, introduced its cartoon tiger in 1964. The trademarked tiger was used in advertising and in promotional giveaways. Later, a real tiger was used in many ads.

The oil company, the world's largest, has been known as Exxon Mobil since its merger with Mobil Co. last year.

In the appeal acted on Monday, Exxon's lawyers had argued that Kellogg lost the right to sue by waiting so long to do so. Exxon cited a doctrine of law that says even a valid claim can be voided by negligence or laxness in pursuing it.

Exxon argued that other federal courts have interpreted the standard differently in trademark cases, and asked the Supreme Court to settle those differences by declaring the doctrine applies.

Kellogg lawyers, meanwhile, argued that the doctrine should not apply, saying they weren't lax since they were responding to the new ads in the 1990s.

The case now goes back where it started, for a trial before the same federal judge who threw out Kellogg's claims in 1998. The 6th U.S. Circuit Court of Appeals later resurrected the case.

Mark Crispin Miller, a New York University professor who studies popular culture and the media, said that while the dispute may seem silly, Kellogg probably has a point. Young children especially are easily confused by similar-looking products and promotions, even when a popular culture figure as famous as Tony the Tiger is involved, Miller said.

''I sort of think Kellogg's legal department would have better things to do, but the point they raise is an interesting one. We don't tend to scrutinize these icons all that carefully,'' he said. ''I think that one vaguely anthropomorphic cartoon tiger looks pretty much like another to most people.''

The case is Exxon Mobil Corp. v. Kellogg Co., 00-252.