Despite receiving a demand letter from fried chicken chain Chic-fil-A objecting to his EAT MORE KALE mark based upon its own EAT MORE CHICKEN mark, a Vermont t-shirt maker is one important step closer to achieving a federal registration for his brand.
Moore's mark received increased publicity after the public posting of a 2011 cease and desist letter from Chick-fil-A. The restaurant claimed Moore's mark EAT MORE KALE was likely to cause confusion with its trademarked slogan, "Eat Mor Chikin," and that the mark diluted the distinctiveness of Chick-fil-A's intellectual property. The letter went on to site approximately 30 other examples of "Eat More..." slogans whose owners agreed to stop use of the term upon receiving a letter. Moore claimed the restaurant demanded that he shut down his website, discontinue printing his merchandise sold commercially since 2003, and send his inventory of t-shirts, stickers and more to Atlanta to be destroyed.
Following the posting, fans of the t-shirt maker gathered to create support groups and publically name the restaurant a trademark bully. "Chick-Fil-A is trying to put one Vermonter out of business for using the phrase 'Eat more Kale'. They need to be stopped! Support Bo Muller-Moore," read the description of one Facebook group.
Despite the assertive demand letter, Chick-fil-A apparently chose not to oppose the EAT MORE KALE mark when it published for opposition. As a result, the applicant recently received a Notice of Allowance, and thereby time to perfect his application with evidence of use. It seems in this dispute, merits aside, David has beat Goliath.
*Danielle Wright is a trademark and copyright law clerk at Finnegan, Henderson, Farabow, Garrett & Dunner LLP.
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