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‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

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Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#21

Post by rayiner »

graeme wrote: post #18
rayiner wrote: post #13

Earlier quoted context omitted.

Eat Mor Chikin is a popular (and quite original) series of advertisements, and "Eat More Kale" is clearly an attempt to play off that slogan.

How is it clearly an attempt to play off that slogan? I hadn't heard of the slogan, and 'Eat More Kale' just sounded like it was playing off the pro-Kale zeitgeist of our times. Both vegetarian and paleo diet eaters love Kale (to use two opposite diets as examples), and it's all the rage in trendy urban areas.

If you've heard of "Eat Mor Chickin" you clearly perceive "Eat More Kale" as a vegetarian retort to that. If you haven't heard that slogan... well I don't know what to tell you, what rock have you been living under?

EDIT: I think this may be explained by my being from the south and your being from Canada...

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#22

Post by xenophanes »

> Chick-fil-A tried to stop him after first finding out about the sales in 2006 but then gave up the fight.

>That is, until Muller-Moore filed for trademark protection in early 2011.

well that's pretty different than it sounded like based on reading the other HN comments.

they aren't going after him for using the phrase (they did try that in the past, but gave up), but for trying to trademark it!

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#23

Post by mjmahone17 »

rayiner wrote: post #16
ars wrote: post #2

Is it really possible to trademark a sentence where the plain meaning of the sentence is something that people would ordinarily say?

Yes, but such trademarks are necessarily harder to defend because you have to show that consumers associate the term with a specific brand, not just the meaning of the words. This case is pretty easy, though, because nobody would use "Eat More Kale" as a marketing slogan unless it was an intentional play on Chick-fil-A's popular and widespread "Eat Mor Chikin" campaign.

But isn't satire considered a non-infringing use?

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#25

Post by rayiner »

mjmahone17 wrote: post #23
rayiner wrote: post #16

Earlier quoted context omitted.

Yes, but such trademarks are necessarily harder to defend because you have to show that consumers associate the term with a specific brand, not just the meaning of the words. This case is pretty easy, though, because nobody would use "Eat More Kale" as a marketing slogan unless it was an intentional play on Chick-fil-A's popular and widespread "Eat Mor Chikin" campaign.

But isn't satire considered a non-infringing use?

Parody is a non-infringing use, but this seems more like playing on the popularity of Chick Fil-A's slogan than parodying it. Successful parody cases (where the use was found non-infringing) have been things like "South Butt" (versus North Face) and "Chewy Vuiton" (for dog toys).

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#26

Post by DannyBee »

xenophanes wrote: post #22

> Chick-fil-A tried to stop him after first finding out about the sales in 2006 but then gave up the fight. >That is, until Muller-Moore filed for trademark protection in early 2011. well that's pretty different than it sounded like based on reading the other HN comments. they aren't going after him for using the phrase (they did try that in the past, but gave up), but for trying to trademark it!

They aren't going after him, just probably opposing the registration in front of the PTO.

If you are a party who may be damaged by issuance, you can challenge the registration before it issues.

EDIT: Actually, looking closer they aren't even opposing, the PTO issued the rejection directly, without any involvment from chick-fil-a at all. It never even made it to the opposition stage.

http://tsdr.uspto.gov/#caseNumber=85412053&caseType=SERI...

There are no filings or documents from chick-fil-a in here at all. The examiner apparently came up with the rejection reason on their own (any communications chick-fil-a had by phone with the examiner would have been on record and here as well)

It's even been through two examiners now.

That said, the current examiner's arguments seem like complete and total BS.

Double edit: I take it back, it looks like one of these actually is a notice of a letter of protest (december 22nd, 2011), which functions much like an opposition. However, only the outgoing notice that a letter of protest is filed is there, the actual letter of protest (received, december 2011), presumably from chick-fil-a, is for some reason, not in the documents.

Sorry, i'm much more used to reading patent dockets than trademark ones :)

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#27

Post by radicalbyte »

Since living in Holland I've started eating a lot more Kale. The boil it and mix it with mashed potatoes, served with smoked sausage and bacon bits.

With good quality hand made smoked sausage it's one of my favourite meals.

For anyone interested: http://recipes.sparkpeople.com/recipe-detail.asp?recipe=2023...

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#29

Post by majormajor »

DannyBee wrote: post #26
xenophanes wrote: post #22

> Chick-fil-A tried to stop him after first finding out about the sales in 2006 but then gave up the fight. >That is, until Muller-Moore filed for trademark protection in early 2011. well that's pretty different than it sounded like based on reading the other HN comments. they aren't going after him for using the phrase (they did try that in the past, but gave up), but for trying to trademark it!

They aren't going after him, just probably opposing the registration in front of the PTO. If you are a party who may be damaged by issuance, you can challenge the registration before it issues. EDIT: Actually, looking closer they aren't even opposing, the PTO issued the rejection directly, without any involvment from chick-fil-a at all. It never even made it to the opposition stage. http://tsdr.uspto.gov/#caseNumber=…

The article says that they re-contacted him directly to try to get him to stop using it after he filed for protection: "In October 2011 Chick-fil-A sent a letter to Muller-Moore stating that he had to stop using the phrase because it may be confused with the company’s. They also told him to stop using his website, eatmorekale.com."

Which, given that they'd stopped after 2006, does make it look rather like a don't-poke-the-bear thing regarding his own filing for trademark protection after Chick-Fil-A had initially dropped it.

Re: ‘Eat More Kale’ Company Is Losing Against Chick-Fil-A in Trademark Battle

#30

Post by DannyBee »

majormajor wrote: post #29
DannyBee wrote: post #26

Earlier quoted context omitted.

They aren't going after him, just probably opposing the registration in front of the PTO. If you are a party who may be damaged by issuance, you can challenge the registration before it issues. EDIT: Actually, looking closer they aren't even opposing, the PTO issued the rejection directly, without any involvment from chick-fil-a at all. It never even made it to the opposition stage. http://tsdr.uspto.gov/#caseNumber=…

The article says that they re-contacted him directly to try to get him to stop using it after he filed for protection: "In October 2011 Chick-fil-A sent a letter to Muller-Moore stating that he had to stop using the phrase because it may be confused with the company’s. They also told him to stop using his website, eatmorekale.com." Which, given that they'd stopped after 2006, does make it look rather like a don't-pok…

Fair, but they almost had to, if they wanted to be able to oppose it sanely, since they knew about him using it, etc.
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