Could General Mills Have Trademarked Circular Cereal?

If you go to any supermarket and take a stroll through the cereal aisle, you’ll see a bounty of O-shaped options. There’s generic supermarket brand O’s, Trader Joe’s O’s, Kosher for Passover Crunch-i O’s, 365 Organic Morning O’s, and of course the road-paver of them all, Cheerios. With all of these iterations of the original General Mills cereal, you would think that the company would have tried to trademark their design, putting a stop to all other versions of what is essentially their product.

Invented in 1941 and originally called Cheerioats (until a competitor lawsuit demanded that they shorten the name to end all oat-based cereal confusion), Cheerios was the first oat-based cold cereal to hit the market. According to 75 Years of Innovation, Invention, Food & Fun, General Mills’ celebratory anniversary book, they tested more than 500 formulas and “more than 10 shapes and sizes ... before researchers came up with the perfect combination.” 

According to the Oxford Encyclopedia of Food and Drink in America, the original manufacturing process of gun-puffed rice was invented by Dr. Alexander P. Anderson in 1902. In the 1940s, a new version of the puffing gun was invented by General Mills' Mechanical Experimental Department engineer, Thomas James. On General Mills' blog, Susan Wakefield, a corporate archivist for the company, explains that much of General Mills’ success can be attributed to the puffing gun and its subsequent models, including the C-gun in the 1960s and E-gun in the 1980s. 

Yet according to the General Mills' archives department, even with this fancy technology, the company never tried to trademark the now-classic O shape. (Technically, trademark legislation was still in its very early stages when Cheerios first appeared, providing a solid argument for why nobody thought to immediately run to their lawyer.)

But had they been invented after Congress passed the Lanham Act in 1946, would General Mills have had a case? 

In an email from Oliver Herzfeld, SVP and Chief Legal Officer of the brand licensing agency The Beanstalk Group, he explains that product shapes can be trademarked, but only if “the shape is not a functional feature of the underlying product” (according to Kath, a nutrition food blogger whose post on homemade toasted oat cereal was sponsored by General Mills, “they would have been fine without the hole!”) and if it “meets the requirements under the trademark law of distinctiveness.” Herzfeld broke that last bit down, saying that “historically, trademark protection was not granted to product shapes until the consuming public”—in this case, frequenters of the breakfast cereal aisle—“recognized the shape as indicating the source of the product.”

Compare the Cheerios shape to the classic Coke Contour Bottle, which was trademarked in 1977. The contour shape, also referred to as the hobbleskirt bottle, has no functional value (it doesn’t even make it easier to hold!) and is strongly associated with the Coca-Cola company, whereas the round Cheerio could be brought to you by the letter O, or by the long-gone inventor of the wheel.

Simply put, Herzfeld doesn’t think they would have had a solid case for trademark protection. Which is a bummer, considering how awesome it would be if every cereal in the supermarket was a different shape. Or maybe there would just be fewer cereals. Either way, General Mills' decision, or lack thereof, to not trademark their now recognizable O’s is a win for us all.