Eating more isn’t necessarily a bad thing. Yeah, I saw the documentary Super Size Me; admittedly, I haven’t viewed certain fast food the same way since, but it all depends on what it is you’re eating, right? Common sense dictates that if it’s good for us, we should eat more of it. Indeed, Lexi Petronis of Glamour writes this about the 2010 U.S. Dietary Guidelines“In fact, several of the guidelines tell us to eat more–more dairy, more seafood, more fruits and veggies.WebMD adds a few items to their own “eat more” listing as well:

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Now, when a specialty fast food restaurant chain and trademark owner adopts a tagline that includes such a basic and competitively necessary message as “eat more” — of the core food it sells — at least these trademark questions necessarily arise: is the tagline even distinctive (does it point to a single source) and, if so, how strong and broad can the rights be? I’d also add, is dilution-style fame even a possibility for such a tagline? 

As you know, we’ve been monitoring, scrutinizing, and breaking news on Chick-fil-A’s efforts to prevent federal registration of Robert “Bo” Muller-Moore’s “Eat More Kale” tagline and trademark, based on Chick-fil-A’s “Eat Mor Chikin” tagline and trademarks — still no federal district court lawsuit, as far as we know. And, as you will recall, I’ve expressed some serious doubts about Chick-fil-A’s claim of likely confusion between the “Eat Mor Chikin” and “Eat More Kale” taglines and marks.

To me, what makes Chick-fil-A’s tagline distinctive is not the words alone, but the seriously mispelled words in the black-ink dripping style, along with the conniving cows who are determined to have fast food customers eat more chicken, and less beef. Had Chick-fil-A adopted a properly spelled tagline “Eat More Chicken” without these unique elements, it is hard for me to imagine the USPTO would have registered it without a serious showing of acquired distinctiveness, and that seems highly unlikely. It would have been like Wendy’s trying to own “Eat More Beef” as opposed to the vastly more creative and distinctive “Where’s the Beef?” tagline.

Nevertheless, the USPTO Examining Attorney assigned to Muller-Moore’s “Eat More Kale” trademark application has now reversed herself (hat tip to Corsearch’s Trademarks + Brands Blog), on the talons of of a successful Letter of Protest (by the way, Geri Haight of Mintz Levin recently did a nice write-up on trademark Letters of Protest), presumably filed by Chick-fil-A, and the USPTO now appears devoted to according the tagline an enormous scope of rights, almost treating it as if Chick-fil-A’s mark were “Eat More” and not the narrower “Eat Mor Chikin”.

So, I must ask, should yours truly eat more crow or humble pie for calling Chick fil A’s trademark allegations regarding “Eat More Kale” baseless?

Or, will counsel for “Bo” be able to overcome the registration refusal for the distinct pleasure and certainty of litigating at the TTAB and having the mark formally opposed by Chick-fil-A?

And what do you make of these additional “eat more” examples? Don’t they make a claim of dilution-style fame difficult?

 

  • Bo Muller-Moore

    I appreciate this blogs continued attention.

  • MissiJohnsonONiTunes

    i think chic-fil-a’s case is just plain stupid! all i can say is there must be some high-powered conservative nut-bags backing chic-fil-a. the fact chic-fil-a used religion to support their stupidity is even more sickening. they used their religious beliefs to bully a small business man, bo muller-moore…ah, they cited some blah-blah crap about how thier actions against bo muller-moore and his “eat more kale” slogan is sanctioned by scripture which told them they had to block bo muller-moores slogan if they were to be ‘good stewards’ of what they’d been given -which is basically a STOLEN TRADEMARK, after all they’ve done nothing but STEAL the “eat morE” slogan they’ve been using from the past – Example: “eat more veggies” which came from the US government, farmers, etc which appeared on posters far back as the 1940’s… wow! whatta load of ignorance, i just can’t stand it. all i can say is ” hey, chick-fil-a, EAT MOR CRAP – you’ve been so full of it all along, ya might as well load up on some more! “

  • Cathed709

    I think cfa’s case is absolutely baseless. Are they protecting ‘Eat Mor’ or ‘Eat More’ which is not even their mark? And if they’re going after ‘Eat More,’ then Bo should try ‘Eat Mor Kale’ and see how they like that.

    What about my dairy company using ‘Eet Moo-r Milk!” for a tag? Would a third misspelling of eat and a pun on moo for more protect me? Or would CFA go after me because it would sound like ‘Eat more’?? This is unreasonable, and shame on the trademark office for even considering it.

  • ScottIreland

    If Chik-Fil-A can win this, then Microsoft will be allowed to prevent anyone from calling those wall openings in your home windows…I mean, you might confuse them for Microsoft Windows, right? People need to understand that CFA’s entire basis for this action is to say that their customers are too stupid to know the difference between Kale and ‘Chikin’. Do you really want to patronize a merchant who makes that assumption about their customers? I don’t, and I won’t.

    • Rachel Rodgers

      My thoughts exactly.

  • Pw

    What’s interesting to me is that CFA is apparently presenting itself as a clothing retailer (confusion in clothing) rather than a fast-food chain. A search through the company’s web site shows that they do in fact sell various items of clothing, including a small selection of Eat Mor Chikin shirts, and also including one 60s-themed shirt that proclaims chicken to be “groovy”. I eagerly await reports of their C&D letters to other shirt designers who have the temerity to incorporate the peace sign in their products.