by Paul Alan Levy
When I first heard about Chik-fil-A’s threats against Vermont silk-screen artist Bo Muller-Moore over his use of the slogan “Eat More Kale,” claiming that the slogan infringes or dilutes their trademark in the advertising slogan “Eat Mor Chikin” my first reaction was outrage. Certainly nobody is going to confuse eating kale with eating chicken, so an infringement claim is absurd. And the cute “Eat Mor Chikin” slogan does not give the Atlanta-based chain any general entitlement to prevent others from using the phrase “Eat More.” So there is also no dilution, wholly apart from the fact that Muller-Moore might well argue that “Eat More Kale” is protected as a parody of Eat Mor Chikin.
As its cease-and-desist letter began to blow up in its face, Chik-fil-A trotted out that old war-horse defense for trademark bullying: “we must legally protect and defend our [trademarks] in order to maintain rights to the slogan.” This is nonsense. There is no infringement here, and there is no dilution. Companies do not have to send out foolish and abusive communications to defend their rights in valid trademarks. Apparently, this is not the first time Muller-Moore received a cease-and-desist letter from Chik-fil-A; he got one five years ago, there was an exchange of correspondence, and Muller-Moore just continued as he was. Assuming that this acquiescence did not injure Chik-fil-A's trademark rights, there was no need for more threats now.
But although I am pleased to see Chik-fil-A pay the public relations price for abusive behavior, the more I thought about the controversy the less sympathy I had for Muller-Moore. In fact, he brought this situation on himself by his own abusive behavior.
The occasion for the new cease-and-desist letter was his filing of a federal trademark application for the phrase “Eat More Kale.” As much as I like the humor in the slogan, which plays a vegetarian angle on the better-known slogan, why should Muller-Moore be able to prevent other members of the public from making T-shirts with the same slogan? It seems terribly unlikely that members of the public would see that slogan and think about Muller-Moore, or assume that his company made the shirts. The slogan is not a mark that identifies his business – it is a cute slogan that makes fun of Chik-fil-A and at the same time promotes the consumption of a healthy vegetable.
For that reason, I found the Change.org petition supporting Muller-Moore particularly troubling. The headline is, “Stop Bullying Small Business Owners,” but if you look at the text below, it is apparent that the hope is to give Muller-Moore the ability to bully other small business owners himself, by preventing them from printing the same phrase on T-shirts. “A federal trademark would block other artists from copying his design (which has happened in the past) and protect the livelihood he's worked so hard to build.” Right – it would sustain his livelihood by giving him a monopoly on a phrase that belongs in the public domain. And Muller-Moore did not even invent the phrase – according to his web site's home page, he first put the words on shirts on a special order for his neighbors “Paul and Kate of High-Ledge Farm.”
So my reaction, in the end, is, a pox on both your houses. Muller-Moore’s trademark application ought to be denied, but not for the reasons given by Chik-fil-A.