Latest Round of “Eat More Kale” Trademark Battle Goes to Goliath.

Fast-food company Chick-fil-A won another round in its highly publicized trademark dispute with a Vermont folk artist named Bo Muller-Moore. While Muller-Moore has enjoyed broad public support, the U.S. Patent and Trademark Office (USPTO) has preliminarily denied his trademark application for “Eat More Kale.”

The IP battle, which has been characterized by many as David v. Goliath, began when Muller-Moore filed for trademark protection in early 2011. Chick-fil-A subsequently sent Muller-Moore a cease and desist letter. It demanded that the artist stop using the phrase on hand-screened t-shirts, which are sold in Vermont and across the country via his website, eatmorekale.com. The fast food giant argues it is too similar to the company’s already trademarked “Eat Mor Chickn” phrase.

The USPTO seems to agree. A trademark examiner recently refused registration after concluding that “the applicant’s mark is similar in overall commercial impression to the registered marks.”

While the examiner acknowledged that the terms “kale” and chicken” have different and specific definitions, he ultimately concluded that “the similarities between the marks are more important than the differences.” As further explained in the official letter, “The marks urge action in the same way, only as to different substances, and both of them are commonly consumed types of food.”

As this case highlights, the winners in the court of opinion and the actual courtroom are not always the same. Muller-Moore now has six months to respond to the USPTO’s latest ruling.

MONTPELIER, Vt. — A Vermont folk artist who built a T-shirt business around the phrase “eat more kale” says the U.S. Patent and Trademark Office has given him a “preliminary no” in his effort to protect it after the Chick-fil-A restaurant chain complained.

Montpelier resident Bo Muller-Moore says he had expected Monday’s ruling to be more definitive. He says he has six months to respond to it.

Chick-fil-A has argued Muller-Moore’s T-shirt infringes on its trademarked “eat mor chikin” slogan.

The legal fight over “eat more kale” prompted Gov. Peter Shumlin to say in December 2011 the state would do all it could to help Muller-Moore against Chick-fil-A.

Atlanta-based Chick-fil-A sells chicken sandwiches and sides. It made headlines last summer over its president’s comments opposing gay marriage. It hasn’t responded to an emailed request for comment on the “eat more kale” ruling.

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

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