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.

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