Yesterday the New York Times ran a story on the “Eat Mor Chikin” v. “Eat More Kale” trademark dispute — the same one we covered a week ago: Eat More Anything?
A couple of quotes from the NY Times article caught my eye:
“In a statement, Chick-fil-A said, ‘We must legally protect and defend our ‘Eat mor chikin’ trademarks in order to maintain rights to the slogan.’”
So, Chick-fil-A, am I hearing right, you’re saying “there’s a chance,” of becoming generic and losing all rights in your “Eat Mor Chikin” slogan if Bo continues selling his “Eat More Kale” products?
Here’s the response from Bo’s pro-bono counsel:
“We believe it’s pretty clear, the issue of dilution and confusion aren’t really triggered here,” he said. “There’s no one out there that’s going to come forward and say, ‘I thought I was buying a Chick-fil-A product but I got this T-shirt.’”
I’m thinking both missed the mark a bit.
As to Chick-fil-A’s position, there is no legal obligation to enforce, and the risk of trademark genericide here seems even more exagerrated and remote than the risk of genericide when brandverbing — something that significant brand owners have learned to manage.
And as to Bo’s position, while I agree with the conclusion that there is no likelihood of confusion or dilution here, whether consumers confuse the products — chicken sandwiches and t-shirts — is not the test of likelihood of confusion or dilution.
Any predictions on how this fight will end?