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"Eat More Kale": another reason to despise CFA?

http://finance.yahoo.com/blogs/the-exchange/eat-more-kale-company-losing-against-chick-fil-212157027.html

 

‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

The U.S. Patent and Trademark Office this week gave a “preliminary no” to Vermont-based folk artist Robert Muller-Moore regarding his efforts to protect his “Eat More Kale” T-shirt business. This ruling is based on Chick-fil-A's claims that the “Eat More Kale” phrase is too similar to its trademarked slogan, “Eat mor chikin.”

The legal fight over the “Eat More Kale” trademark between Muller-Moore and Atlanta-based Chick-fil-A Inc. has been going on for several years. Muller-Moore has been selling T-shirts and other items with the phrase for more than a decade. A local vegetable farmer asked him to create three shirts with the phrase, and Muller-Moore continued with the sales as a tribute to local farming.

He hadn't even heard of Chick-fil-A until the company contacted him. Chick-fil-A tried to stop him after first finding out about the sales in 2006 but then gave up the fight.

That is, until Muller-Moore filed for trademark protection in early 2011. In October 2011 Chick-fil-A sent a letter to Muller-Moore stating that he had to stop using the phrase because it may be confused with the company’s. They also told him to stop using his website, eatmorekale.com.

Muller-Moore now has six months to respond to Monday's ruling. "I feel like it’s sad and absurd that the process takes as long as it does," Muller-Moore says. "To me, it seems designed to favor corporations and just roll over mom-and-pops."

The ruling does lean toward a favorable outcome for Chick-fil-A. The trademark examiner said the“applicant’s mark is similar in overall commercial impression to the registered marks” and that “the similarities between the marks are more important than the differences.” The examiner said further that “the marks urge action in the same way, only as to different substances, and both of them are commonly consumed types of food.”

“One of the key things is that there is a rejection based on an allegation of the likelihood of confusion,” says Chris Colvin, partner at intellectual property law firm Colvin Hudnell LLP. This means consumers are likely to be confused into thinking the products under the “Eat More Kale” banner are coming from the same source as Chick-fil-A’s trademark.

But Muller-Moore claimed in his trademark application that his phrase was meant to “invoke the message of buying and eating locally grown produce and living close to the earth and the farmer,” while Chick-fil-A meant to persuade people to eat chicken instead of beef. He says he feels like he's "in a fight with the trademark office" instead of Chick-fil-A because the office is not allowing him to register his slogan as a trademark.

Patrick Jennings, an intellectual property lawyer at Pillsbury Winthrop Shaw Pittman LLP in Washington, D.C., says that, typically in trademark disputes, the decision ultimately relies on how people would pronounce the slogan. In this case, he says, “Eat More Kale” is pretty similar to “Eat mor chikin,” whereas “the spelling doesn’t matter so much.”

Colvin says another important issue is whether the mark is able to be registered. “It typically comes down to a spectrum of distinctiveness,” he says. Words such as Kodak, which are made up, are the most protected. The least protection goes to generic terms.

Jennings says Muller-Moore can try to overcome the refusal but the odds of success with the appeal board are less than 10%. “Patents are very technical but trademarks are much more subjective,” he says. “The burden to prove infringement is much lower.”

 

There is more but, that's the gest of it.

Thoughts?  

 
3libras

Asked by 3libras at 8:14 PM on Apr. 25, 2013 in Politics & Current Events

Level 51 (427,020 Credits)
This question is closed.
Answers (11)
  • You'd have to be an illiterate, brain-dead fool to confuse the two, but whatever.

    In another article it mentioned something about 'Chick-Fil-A's intellectual property' and I giggled. Somehow seeing the word intellectual right next to Chick-Fil-A was just too funny to me.
    anime_mom619

    Answer by anime_mom619 at 9:54 PM on Apr. 25, 2013

  • Now you just know there are gay pride shirts out there that say Eat more cock, wonder if they've sued them yet, too, or if that brings them too much bad attention.
    NotPanicking

    Answer by NotPanicking at 8:28 PM on Apr. 25, 2013

  • You'd have to be an idiot to confuse the two. This is ridiculous.
    jeanclaudia

    Answer by jeanclaudia at 8:16 PM on Apr. 25, 2013

  • I don't know. I guess that's up to a judge. Toys R Us can trademark R Us though, so I would think they have a shot.
    QuinnMae

    Answer by QuinnMae at 8:28 PM on Apr. 25, 2013

  • My first thought Is that it's a little silly, but then I just think that it boils down to 'its just business'. They probably go after every business that uses the 'Eat More' phraseology.
    QuinnMae

    Answer by QuinnMae at 8:23 PM on Apr. 25, 2013

  • How stupid! Kale and chicken sound sooooo much alike, you know.
    Ballad

    Answer by Ballad at 8:43 PM on Apr. 25, 2013

  • I do not know. It is not an area of the law that I have any familiarity with.
    However It is probably similar to copyright laws. I don't know all the ins and outs of that either, but I remember, perhaps 10 years ago, a quilt artist made a traditional quilt in pastels. She entered contests and wrote a pattern. Traditional quilt designs are in the public domain. Her use of pastels was a recorded first an she won her suit against others that submitted quilts using her idea.

    I thought it was rediculous but it was the way the laws were written.
    Dardenella

    Answer by Dardenella at 8:59 PM on Apr. 25, 2013

  • this coming from the company that claims they invented the chicken sandwich...like no one ever put chicken on bread before them...

    but as much as i hate to say it, the first time i read the Kale slogan i immediately thought of CFA, and still do. however if the shirts are for local Kale business and to promote local farmers, i think CFA is doing themselves harm by seeking this out as this isnt a country or global thing. wanting him to stop using the website is especially lame.
    okmanders

    Answer by okmanders at 10:33 PM on Apr. 25, 2013

  • Kale is some nasty tasting stuff, as well as the CFA food. Maybe thats where folks are getting confused on...
    Michigan-Mom74

    Answer by Michigan-Mom74 at 12:56 AM on Apr. 26, 2013

  • Chick Fila doesn't even serve kale so how could it be confused. Sounds like corporate bullying to me.
    hellokittykat

    Answer by hellokittykat at 1:42 AM on Apr. 26, 2013

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