DuetsBlog Collaborations in Creativity & the Law

New York Times Covers “Eat More Kale” Trademark Dispute

Posted in Dilution, Food, Infringement, Trademark Bullying, Trademarks

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?

  • Gene Beley

    This is just another ridiculous legal harassment case of S. Truett Cathy, CEO of Chick-fil-A, a once small businessman forgetting his roots after he became a big business. He needs to drop this lawsuit immediately. Our entire justice system has gone whacko. This is just another example to to keep lawyers employed. Cathy should cover any legal costs of the Vermont Kale T-shirt maker and apologize to him. Until they do, they will continue to damage the reputation of Chck-fil-A. I certainly would not want to invest in one of their franchises, knowing this is how they operate and waste franchisees’ money.
    -Gene Beley, Stockton, CA

  • Pingback: Chick-fil-A Goes Stealth in "Eat More Kale" Trademark Dispute? | DuetsBlog