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March 28, 2012

Team Kale Hits A Speed Bump

Bhphoto_kale_CentralImage-334x200"Eat More Kale" t-shirt artist Bo-Muller Moore is having a roller coaster of a week. On Sunday night, he was thrilled to discover that the Kickstarter campaign to raise money to fund a documentary film about his legal tangle with fast-food giant Chick-fil-A had raised roughly $86,000, exceeding the original goal by $11,000.

Two days later, Muller-Moore learned his quest to register a trademark had hit a sobering speed bump: In a preliminary ruling, an attorney with the U.S. Patent and Trademark Office determined that there's a "likelihood of confusion" between Muller-More's "Eat More Kale" slogan and Chick-fil-A's "Eat mor Chikin" marketing campaign.

"It makes me sick to my stomach," says Muller-Moore of the news, though he quickly recovered his signature chutzpah. "There's still a lot of fighting to be done."

Muller-Moore received a cease-and-desist letter from Chick-fil-A this fall, a few months after he filed to register his own "Eat More Kale" trademark. The company also asked him to turn over his website, the second time in six years that Chick-fil-A had tried to shut him down. Since Gov. Peter Shumlin prominently stepped in to support Muller-Moore and formed the advisory Team Kale, Muller-Moore's case has garnered widespread attention. He received thousands of orders for his t-shirts and tons of national press.  Donations for the documentary he's making with Burlington filmmaker James Lantz, A Defiant Dude, poured in from across the world.

The trademark attorney's letter explains that the office compared the two slogans — "Eat More Kale" and "Eat mor Chikin," — on the basis of "appearance, sound, connotation and commercial impression," as well as whether both are used in similar ways — in this case, on clothing — and the maxim that people "are more inclined to focus on the first word, prefix or syllable in any trademark or service mark."

"Both the applicant and the registrant in this instance are providing essentially the same goods, namely, clothing, and services featuring clothing (imprinting decorative designs on t-shirts)," the letter concludes. "Therefore, with the contemporaneous use of highly similar marks, consumers are likely to reach the mistaken conclusion that the goods and goods and services are related and originate from a common source."

"Obviously, I think this is the wrong decision. We're going to submit filings to show that there is no, has never been or is likely to ever be any confusion," says Dan Richardson, Muller-Moore's attorney. The letter doesn't mean that Muller-Moore needs to back down just yet; Richardson and the rest of the legal team will assemble evidence to support Muller-Moore's trademark request.

The confusing ins and outs of trademark law aside, "This has become a galvanizing issue. Bo is not unlike a lot of small businesses out there. What he's getting is essentially the billion-dollar cold shoulder from Chick-fil-A, and I don't think anyone thinks that's fair," observes Richardson.

"It's totally absurd what's happening here — you have a conglomo whose counsel is doing exactly what the company pays them to do, which is clear the field," says Jonathan Pink, an intellectual property attorney with the law firm Bryan Cave. He has loosely followed the case from his Los Angeles office and penned a blog post about it earlier this week. He muses that the company seems to be trying to own the phase "eat more" as it applies to practically anything. "How far do you take it?"

Muller-Moore says that after he broke news of the letter, he received a flood of t-shirt orders via his website, which he and his team are hustling to fill.

"I've been selling t-shirts for 11 years. I've had thousands of conversations about my t-shirts and no one had ever brought up this parallel or similarity, with the exception of Chick-fil-A's lawyers and one federal attorney in the trademark office, " he says. "Who are these people? Do they have any conscience?" It's such a gross misstep of intellectual property rights law. I don't know how the lawyers pursuing it can sleep well at night."

With classic southern aplomb, he vowed to keep pressing his case. "It ain't over yet, sister."

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