Bo Muller-Moore sells $25 hand-stenciled "Eat More Kale" T-shirts that he cranks out one at a time in his Vermont home, and this has ruffled the feathers of Chick-fil-A.
The fast-food chain, which rang up $3.5 billion in sales in 2010, is trying to put Muller-Moore out of business—for the second time in five years. Chick-fil-A, which is second only to king-of-the-fast-food-coop KFC, considers him a threat to the brand.
Chick-fil-A says Muller-Moore's T-shirt business, founded in 2000, infringes on its trademarked slogan "Eat Mor Chikin." It's a [deliberately-misspelled] advertising campaign the Atlanta-based chain launched in 1995 and, according to the company website, changed the burger-eating landscape forever. The message "reaches millions—on television, radio, the Internet, and the occasional water tower," explains the website. (The closest Chick-fil-A to Vermont is in Nashua, N.H., more than 120 miles away.)
Chick-fil-A first came after Muller-Moore in 2006, with a letter demanding that the artist—who also posts screenprinting instructional videos at eatmorekale.com—cease and desist from printing T-shirts and send Chick-fil-A any inventory.
"Man, it knocked the wind out of me," Muller-Moore, 39, told the Burlington Free Press. "I make my living as a foster parent. At the time, I had one small child. I now have two of my own. My business has grown every year. I'm certainly not getting rich. I can't live on it. It's the foster parenting gig that pays the bills, but that said, the business is growing every year. I'm in it for the long haul."
Muller-Moore applied to the Vermont Arts Council for free legal help, and a lawyer wrote some letters on his behalf. It seemed Chick-fil-A backed down. But then in August Muller-Moore applied for a U.S. trademark for "Eat More Kale" to use the phrase on a range of clothing and stickers.
Chick-fil-A cried fowl. In October of 2011 the company's lawyers sent a letter to Muller-Moore, noting that the company owns numerous U.S. and international trademarks and copyrights for both "Eat Mor Chikin" and for cows holding sandwich-boards reading "Eat Mor Chikin."
"Your client's Eat More Kale Mark 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," Chick-Fil-A's lawyer wrote to Muller-Moore's, according to the Free Press. "Your client's 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. Such actions constitute trademark infringement, dilution and unfair competition in violation of federal and state law."
The six-page letter notes that Chick-fil-A has successfully defended against 30 other "Eat More" phrases, including "Eat More Goat" and "Eat More Beer," and says the chicken chain has won lawsuits against Burger King Corp. and others. (In 2000, Chick-fil-A objected to a Burger King ad where animated poultry from the film Chicken Run held up signs reading "Save the Chickens: Eat a Whopper.")
The letter asks that Muller-Moore abandon his trademark application, "cease and forever desist" all plans to use the phrase "Eat More Kale" for his business—and transfer the eatmorekale.com domain name to Chick-fil-A. (It says the chicken chain would not object to Muller-Moore using "Eat Kale" or eatkale.com.")
Muller-Moore's lawyer has fired off a five-page response, which observes that no one is likely to confuse the two slogans.
"My client's phrase shares only six out of twelve of the same letters as your client's phrase and none of the imagery or conceits," Richardson writes. "My client has no cow designs which appear in conjunction with the phrase 'Eat More Kale.'"
Whether one is likely to be confused with the other may be less at issue than whether Chick-fil-A can be seen to be lax in its defense of its own trademarks.
"If a trademark owner fails to protect their trademark, they run the risk of losing it," wrote Steve O'Donnell, a Lancaster, Pa., trademark attorney, of a 2010 case where Chick-fil-A complained about an Orlando area fruit and vegetable market using the slogan "Eat More Produce."
Does Chick-fil-A have a case?
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