
‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle - MarlonPro
http://finance.yahoo.com/blogs/the-exchange/eat-more-kale-company-losing-against-chick-fil-212157027.html
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xenophanes
> 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.

well that's pretty different than it sounded like based on reading the other
HN comments.

they aren't going after him for using the phrase (they did try that in the
past, but gave up), but for trying to trademark it!

~~~
DannyBee
They aren't going after him, just probably opposing the registration in front
of the PTO.

If you are a party who may be damaged by issuance, you can challenge the
registration before it issues.

EDIT: Actually, looking closer they aren't even opposing, the PTO issued the
rejection directly, without any involvment from chick-fil-a at all. It never
even made it to the opposition stage.

[http://tsdr.uspto.gov/#caseNumber=85412053&caseType=SERI...](http://tsdr.uspto.gov/#caseNumber=85412053&caseType=SERIAL_NO&searchType=statusSearch)

There are no filings or documents from chick-fil-a in here at all. The
examiner apparently came up with the rejection reason on their own (any
communications chick-fil-a had by phone with the examiner would have been on
record and here as well)

It's even been through two examiners now.

That said, the current examiner's arguments seem like complete and total BS.

Double edit: I take it back, it looks like one of these actually _is_ a notice
of a letter of protest (december 22nd, 2011), which functions much like an
opposition. However, only the outgoing notice that a letter of protest is
filed is there, the _actual_ letter of protest (received, december 2011),
presumably from chick-fil-a, is for some reason, not in the documents.

Sorry, i'm much more used to reading patent dockets than trademark ones :)

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majormajor
The article says that they re-contacted him directly to try to get him to stop
using it after he filed for protection: "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."

Which, given that they'd stopped after 2006, does make it look rather like a
don't-poke-the-bear thing regarding his own filing for trademark protection
after Chick-Fil-A had initially dropped it.

~~~
DannyBee
Fair, but they almost had to, if they wanted to be able to oppose it sanely,
since they knew about him using it, etc.

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pessimizer
The only reason that he filed for a trademark was to keep other people from
printing "Eat More Kale" on t-shirts. He's the IP bully at this point. Chick-
Fil-A gave up on trying to bully him in 2006.

~~~
jarrett
According to the article (though I haven't verified this), there are sellers
on eBay using "the exact same logo." That does sound like it might be
unethical. Assuming the copying is as audacious as the article suggests, I
wouldn't characterize the original creator as a bully.

Regardless of the status of the trademark application, I'd also be curious as
to whether a copyright claim could have legs. If a t-shirt design is copied
verbatim, you might not need trademark protection; copyright could be
sufficient.

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ars
Is it really possible to trademark a sentence where the plain meaning of the
sentence is something that people would ordinarily say?

~~~
rayiner
Yes, but such trademarks are necessarily harder to defend because you have to
show that consumers associate the term with a specific brand, not just the
meaning of the words. This case is pretty easy, though, because nobody would
use "Eat More Kale" as a marketing slogan unless it was an intentional play on
Chick-fil-A's popular and widespread "Eat Mor Chikin" campaign.

~~~
mjmahone17
But isn't satire considered a non-infringing use?

~~~
rayiner
Parody is a non-infringing use, but this seems more like playing on the
popularity of Chick Fil-A's slogan than parodying it. Successful parody cases
(where the use was found non-infringing) have been things like "South Butt"
(versus North Face) and "Chewy Vuiton" (for dog toys).

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radicalbyte
Since living in Holland I've started eating a lot more Kale. The boil it and
mix it with mashed potatoes, served with smoked sausage and bacon bits.

With good quality hand made smoked sausage it's one of my favourite meals.

For anyone interested: [http://recipes.sparkpeople.com/recipe-
detail.asp?recipe=2023...](http://recipes.sparkpeople.com/recipe-
detail.asp?recipe=202341)

~~~
tripzilch
Totally recommended. My favourite potato-hash style dish. I usually skip the
sausage though, I don't like the cheap processed ones (though they are most
"traditional"), which is what you usually get (except when I'm the cook), so I
just add more bacon :)

And next you're having boerenkool with some IT types, tell them how UNOX is
the _worst_ operating system.

~~~
radicalbyte
Hahaha, nice one. I live in Gelderland, close to a butcher who smokes the
proper sausages.

For Americans - the difference is the same as between the processed cheese you
get on a burger and real cheese..

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eurleif
Here's an "eat more corn, oats, ..." poster from WWI:
<http://www.archives.gov/education/lessons/sow-seeds/> I wonder if that's good
for anything.

~~~
lancefisher
IANAL, but trademark are different than patents. If this were a patent issue
that poster could be prior art. However, Chick-fil-A does have a trademark on
"Eat mor chickin", and that's what matters.

In fact if there had been a trademark on "eat more corn, oats, and rye" which
I highly doubt there was, it has likely fallen out of use. You can trademark
old marks that have not been in use for a while. I met a local trademark
attorney that did just this with an old beer brand, that he is now selling a
craft beer under.

~~~
eurleif
But perhaps the prior use could help to demonstrate that "eat more ..." is
just a generic statement, and so the "eat mor chikin" trademark shouldn't be
applied so broadly?

~~~
mpyne
You can trademark generic statements as well, as long as it remains notable
within the business field.

~~~
eurleif
But the trademark is on "eat mor chikin", not "eat more". IANAL, but the
article gave me the impression that the USPTO has some discretion in
determining how much similarity makes a violation.

~~~
mpyne
Yes, that's just it, it's practically all subjective. You don't have to copy
every word for it to be a trademark infringement either.

Personally I think he was lucky to have gotten Chik-Fil-A off of his back in
2006 because the slogan similarities are stunning, but then again I've
actually seen Chik-Fil-A advertising for years before this.

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dromidas
I had no idea that Chick-Fil-A had a slogan, let alone that it was that
retarded. "Eet Moar Chikin" or something like that? What the hell. How is "Eat
More Kale" even similar? One is clearly serious (Kale) and the other is
clearly trying to sound like ICanHazCheezeburger (Chick-fil-A).

~~~
rayiner
Eat Mor Chikin is a popular (and quite original) series of advertisements, and
"Eat More Kale" is clearly an attempt to play off that slogan.

~~~
graeme
How is it clearly an attempt to play off that slogan?

I hadn't heard of the slogan, and 'Eat More Kale' just sounded like it was
playing off the pro-Kale zeitgeist of our times.

Both vegetarian and paleo diet eaters love Kale (to use two opposite diets as
examples), and it's all the rage in trendy urban areas.

~~~
rayiner
If you've heard of "Eat Mor Chickin" you clearly perceive "Eat More Kale" as a
vegetarian retort to that. If you haven't heard that slogan... well I don't
know what to tell you, what rock have you been living under?

EDIT: I think this may be explained by my being from the south and your being
from Canada...

~~~
DavidWoof
Chick-fil-a is much, much more prominent in the South than they are in the
rest of the US, let alone the world, and the Eat Mor Chickin campaign seems to
be much more prevalent down there as well. I honestly don't think I've seen
the phrase outside the South; I'm sure it exists, but chick-fil-a doesn't
advertise nearly as much in NYC and Chicago as they do in the parts of the
South I've lived in.

It's not surprising to me in the slightest that somebody from Vermont, like
the Eat More Kale guy, had simply never heard the slogan. Most people in New
England have never heard of Waffle House either.

~~~
paul_odin
The Eat More Kale guy was born in Memphis, TN.

<http://eatmorekale.com/about.html>

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mistercow
What's so preposterous to me is that Chick-Fil-A's entire "cows doing things
poorly" advertising campaign is basically a rip-off of Gary Larson. Not in any
legal sense, of course, but in an intellectual honesty sense.

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jack-r-abbit
I seem to recall the milk industry getting their panties in a wad over the up
tic in "Got <thing>?" usage. I don't see that going away so perhaps the milk
industry lost that battle? This seems the same to me.

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bluedino
This would be equivalent to "Where's the chicken?" (Wendy's "Where's the
beef?"), right?

Couldn't it just be classified as a parody? It seems silly to not allow them
to use something because it's similar.

~~~
rayiner
See: <http://www.lfiplaw.com/articles/trademark_parody.htm>

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ubersync
Looks like Chick-fil-A love getting into controversies. Remember that whole
anti-gay thing?

