Just so you know, this is not the post I planned to write today. Hat tip to you, Bo!

It has been exactly one year since Bo Muller-Moore — the “Eat More Kale” guy from Vermont — submitted a comprehensive 71-page response to the registration refusal based on “Eat Mor Chikin” issued by the USPTO on March 27, 2012, after a dubious Letter of Protest was filed by Chick-fil-A and surprisingly granted by the USPTO on December 22, 2011.

Given my interest and coverage of this story (here, here, here, here, here, here, and here), and my meaty devotion to our dear readers, I’ve been periodically checking in on the status of Mr. Moore’s EAT MORE KALE application, anxiously awaiting the USPTO’s response to Moore’s thorough missive. So my plan was to write today about how the USPTO has laid a real egg that it continues to sit on — taking no action at all for an entire year, making me want to raise this question again (albeit in a different light): Is the USPTO acting like a (surrogate) trademark bully?

That is all unnecessary now, since the USPTO just yesterday appears to have approved Mr. Moore’s EAT MORE KALE application for publication, opening it up for third party challenge:

“Status: Approved by the examining attorney for publication but has not yet published for opposition. Although rare, withdrawal of approval prior to publication may occur after final review. The opposition period begins on the date of publication.”

Given it took an entire year to handle this hot potato at the USPTO, it’s hard to imagine a “rare” withdrawal of approval will occur at this point, but with this case, I suppose anything is possible.

A better question, it seems to me is: Does Chick-fil-A have the stomach to fight in public over this one, or will the social media shame-wagon cause it to chicken out (again)?

Chick-fil-A’s objection to Moore’s Eat More Kale tagline is not new, going all the way back to 2006, according to the New York Times, but public encouragement for Moore’s defiance dates back to at least 2011, around the time when the New York Times covered the story. Moore’s Kickstarter funding project for a documentary to expose Chick-fil-A’s enforcement as trademark bullying has raised almost $90,000.00 to date.

How much more is likely to be raised if Chick-fil-A files a formal Notice of Opposition?

As much as I’d like to continue to write about and eventually see a full-length documentary on this dispute, if I were Chick-fil-A, I’d let it go, without even a cluck — Eat More Kale that is — and leave Bo to fund a much shorter film instead.

What would you do if you were Chick-fil-A, besides not start this mess in the first place?

To our PR friends, how would you advise Chick-fil-A, now that it appears the opposition window at the USPTO will be open soon?

And, please don’t recycle this previous Chick-fil-A statement: “We must legally protect and defend our ‘Eat mor chikin’ trademarks in order to maintain rights to the slogan.”

Yes, Chick-fil-A, you have enforceable rights in EAT MOR CHIKIN, but you don’t need to pursue EAT MORE KALE to maintain rights to EAT MOR CHIKIN. Yes, that is a period.

UPDATE: October 14, 2014 is the currently scheduled date of publication for opposition, so stay tuned.

  • I think Chick-fil-A will oppose and, at minimum, try to amend the goods and services description (none of the foregoing related to restaurants), restrict use (not in connection with restaurants), and prevent changes to the mark (no misspellings, like ‘Eat Mor Kail’). What they might also do is try to influence the film – for example agree that the ending will portray the parties as having reached an amicable settlement and that Bo has agreed not to use the mark in connection with restaurants. If I were Bo, I might agree to this on the condition that Chick-fil-A pay costs and donate some money to a charity of Bo’s choosing. I think there is a way that everyone can win here – Bo gets his mark and gets to help a charity, while Chick-fil-A gets some assurances and restores some public relations.

  • William Rogers

    GO BO!!! Wooo whooo

    BULLY’S ALERT: Firehouse Subs Co-Founders, Robin and Chris Sorensen for beating up local, small businesses with “rights in gross” and that are indeed unenforceable under the Lanham Act as the Firehouse Subs Registered “marks” were ALL procured by fraud on the USPTO…William Rogers 01/15/2016

    THE BULLY BOYS RECENT TTAB ACTION DETAILED HERE:

    http://www.sbwire.com/press-releases/2016-firehouse-subs-federal-lawsuit-against-columbia-firehouse-restaurant-bar-room-656165.htm