Chik-fil-A and “Eat More Kale” – a Pox on Both Your Houses

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.

Comments

[Gale]

Yeah, I'm getting chills thinking there might be another budding "Warning" litigator out there. There's some guy who sues anyone who puts the words "Warning" on a t-shirt (in any context) because he did it first.

[Diane Blackman]

I don't see how the phrase "Eat More Kale" can be registered as a trademark in the context of a phrase on a T-shirt. The maker of the actual shirt is a different party entirely. The only "property" or "product" of the person applying for the trademark is the phrase as it is printed on the shirt. Which would make the phrase generic to the product - wouldn't it? The trademark is supposed to identify the maker of a product, it can't BE the product? I wouldn't have a problem with registering the phrase in the context of ... say a vegan restaurant. In this instance I'm not seeing a valid mark. And as for the chicken folks - well their actions purely comes out of the nether end of the chickens. It is an insane objection that should itself be actionable.

[Steve Rhode]

"Pox on both your houses." LOL

[Eric Goldman]

Well said, Paul. The phrase "Eat More [Type of Food]" is free for everyone to use, so fie on anyone who tries to use trademark law to propertize it.

[Michael J. Wood]

Mr. Levy,

I believe you are conflating two issues: abusive trademark defense and federal trademark law itself. Large companies, as you point out, "trot out the old war horse defense" that they are required to defend their trademark, when in reality they are more often silencing dissent or bullying small businesses. That is what is going on here whether or not Mr. Muller-Moore files his application. And it is troubling.

Regarding the filing itself, I'm not familiar enough with trademark law to know if Mr. Muller-Moore is improperly trying to trademark something. Whether he is or is not, he should be held to the same standard as any organization that applies for a trademark. If it is improper, it will be denied. If not, I suppose it will be granted.

Either way, I don't believe the pox's are equal here and in presenting them as a (false) equivalency, you are detracting from the much more troubling issue of corporate gagging.