Bo Muller-Moore of Vermont thinks everyone should eat more kale, so he started EatMoreKale.com and printed up some t-shirts in his garage expressing that sentiment. But certain fast food executives in Atlanta aren’t feeling the kale love. Chick-fil-A has sent Muller-Moore’s pro bono attorney a cease and desist letter, claiming that the “Eat more kale” phrase infringes on its trademarked slogan “Eat Mor Chikin.”
Chick-fil-A’s slogan, of course, is attached to a “renegade cow” that encourages people to eschew red meat and chew chicken instead via a sign written in, ahem, chicken scratch; the fast food chain has been using the phrase since 1995.
Muller-Moore’s t-shirt making business began in 2000, and he first heard from Chick-fil-A in 2006, also in the form of a cease and desist letter. The lawyer who took on his case at the time communicated to Chick-fil-A that Muller-Moore was a foster parent and Meals on Wheels volunteer who really wasn’t a threat to the Chick-fil-A empire.
At that point, the whole thing seemed to go away until Muller-Moore’s new attorney received another cease and desist letter this year in what Muller-Moore calls “a clear case of corporate bullying,” but what Chick-fil-A characterizes as protecting its trademark.
What has changed over the past five years? In August, Muller-Moore filed a trademark application for “Eat More Kale” for the use on various articles of clothing and other novelty items; that action got Chick-fil-A’s intellectual property lawyers writing.
The letter from Chick-Fil-A avers that “Eat More Kale” “plays off of and imitates Chick-fil-A’s valuable EAT MOR CHIKIN Intellectual Property by using a prefix confusingly similar to Chick-fil-A’s federally registered EAT MOR CHIKIN trademarks” and that the “misappropriation of Chick-fil-A’s EAT MOR CHIKIN Intellectual Property, to play off of and benefit from the extraordinary fame and goodwill of Chick-fil-A’s trademarks, copyrights, and popular promotional campaign, is likely to cause confusion of the public and dilutes the distinctiveness of Chick-fil-A’s intellectual property and diminishes its value.”
Chick-fil-A alleges trademark infringement, dilution, and unfair competition and insists Muller-Moore stop using the phrase “Eat More Kale” in his business, withdraw his trademark application, and transfer EatMoreKale.com to Chick-fil-A.
Muller-Moore’s attorney has responded that the probability of confusion is nil, particularly considering there’s no Chick-fil-A in the entire state of Vermont and that there are no cows or other animals holding signs on the kale merchandise.
Chick-fil-A has not commented apart from what is contained in the letter, but it has done wonders for Muller-Moore’s business in the meantime; a notice on EatMoreKale.com notes “unusually high demand” causing shipping delays.
Does Chick-fil-A really own the trademark to “Eat Mor[e] [fill-in-the-blank]? What do you think?
And Chick-fil-A owns the mark, who’s next on Chik-fil-A’s hit list? Eat More Verbs (USPTO Reg. 3277912)? Eat Mo’ Bettah (USPTO Reg. 3816273)? Ooh, that last one even misspells some stuff—they should get their lawyers together over some off-brand chicken sandwiches and strategize.