Think of “Eat More Kale”
When you see the phrase “Eat More Kale,” what is the very first thing that pops into your mind? If you went to the website with that name, www.eatmorekale.com what would you expect to find?
Clearly, You Think of Chicken
Chick-fil-A, the $4 billion chicken sandwich specialists with over 1,700 stores across the United States, is certain you will be convinced that “Eat More Kale” has something to do with them. You read that right, Chick-fil-A believes you will think of Chick-fil-A when you read “Eat More Kale” and be confused because, well, Chick-fil-A doesn’t actually serve kale.
My Love Affair With Chick-fil-A
Before I explain, here’s a little background on my relationship with Chick-fil-A. As you probably know, I am a vegetarian and have been since 2001. What you might not know is that before then, I was an ardent Chick-fil-A supporter. The Chick-fil-A chicken sandwich is far superior to any other chicken sandwich out there. I liked it so much that when my parents came to visit me in Austin, TX I took them to Chick-fil-A to experience chicken sandwich perfection and some waffle fries. (I actually felt bad for them, because in Michigan they didn’t have any Chick-fil-A.) Despite its religious origins, I liked that Chick-fil-A is closed on Sunday, guaranteeing that every employee has at least one consistent full day off to spend with family every week. The sandwiches are so good that back when Chick-fil-A was only available in shopping malls, I used to say that the path to being a millionaire was clearly in opening a free-standing Chick-fil-A.
Chick-fil-A sponsors an NFL bowl game. They’re that big. They give away sandwiches to people dressed up like cows on Halloween. More recently, despite the company’s anti-gay marriage stance, I’ve found something else to admire about Chick-fil-A. (Regarding the company’s view on gay marriage, briefly: I no longer eat chicken, so I don’t have to take any action. As corporation, Chick-fil-A can choose to what to support; as a consumer, you can vote with your dollars too.) First, Chick-fil-A has been slowly phasing out artificial colors and trans fats. Second, Chick-fil-a is testing out new buns without high fructose corn syrup for a future roll-out nationwide, and is also testing out healthier alternatives to other ingredients. I admire this because I’m in favor of healthier, less-processed food with fewer artificial ingredients. I also admire this because Chick-fil-A invited a well-known food blogger who had criticized the chicken sandwich contents to address the company’s management and help educate them on what consumers wanted gone and why.
Chick-fil-A: clearly all about the chicken sandwiches. So much about the chicken sandwiches that their famous advertisements on TV and billboards feature spotted cows holding signs that say “Eat Mor Chikin.”
This Vermont Guy? Not About Chicken.
Enter a Vermonter named Bo. Bo Muller-Moore, aka “the ‘Eat More Kale’ guy.” Bo is an artist who makes t-shirts, by hand, with a tiny staff. He runs what you’d call a micro-business. Two farmers, Paul and Kate of High-Ledge Farm, asked Bo to make them some shirts, and so in 2001, Bo started to print shirts that simply say “Eat More Kale.” For a long time you could only get one at a farmer’s market or music festival. Then Bo paid a friend to make him a website, and people all over the place started ordering “Eat More Kale” shirts (and sweatshirts, and aprons). Why? It’s a great idea, and kale is the current media vegetable starlet, with as many articles on kale as on the latest Kardashain escapades. Kale is trendy. So trendy, in fact, the other people started to copy Bo’s shirts.
Like any smart businessman, Bo wanted to protect his interests and his business, and filed for a trademark on “Eat More Kale.” When someone files for a trademark, there is a period of time when anyone can challenge it for certain reasons, and ask the U.S. Patent and Trademark Office (USPTO) to NOT issue the trademark. One of the reasons you can object to a trademark application is that the requested trademark—the name, short phrase, or slogan—is too similar to an existing trademark and would confuse consumers. For example, if I wanted to file a trademark for my store named “Wall-mart,” you can bet Wal-Mart is going to object. The proposed name sounds just like Wal-Mart and is likely to confuse people into thinking there is a connection. Similarly, I wouldn’t be able to trademark the phrase “all the news that’s fit to print” because the New York Times has been using it for decades, and people might be misled into thinking I have some connection to the New York Times. (Confession: I do not, but I’d like to!)
Chick-fil-A Wants To Stop Him.
When Bo filed for a trademark on “Eat More Kale,” Chick-fil-A stepped in to fight it on confusion grounds. To be fair, this isn’t Chick-fil-A’s first attempt to stomp out Bo’s kale shirts. When you own a trademark, you have to protect it, so trademark owners are obligated to ask you to stop when you either use their trademark (hence I’m not opening a vegan chicken sandwich shop called Chick-fil-A) or when you use a mark that is confusingly similar (such as Chickin-fil-A). A few years ago—five years after the first kale shirts–Chick-fil-A wrote what us lawyers call a “cease and desist” letter, telling Bo that he’d better stop making those kale shirts or Chick-fil-A would sue him. Bo got his own lawyer to write a letter back, basically explaining that no one who bought his kale shirts could possibly be confused into thinking they were affiliated in any way with Chick-fil-A. Because, you know, when YOU first read “Eat More Kale,” what did YOU think of?
Unfortunately, the USPTO took Chick-fil-A’s side, and is convinced that you and other consumers are too stupid to understand that “Eat More Kale” is not a Chick-fil-A slogan, and that you will be confused by seeing an “Eat More Kale” shirt. The USPTO has issued a “preliminary rejection” which means Bo is about to lose “Eat More Kale” as a trademark forever. This means two things for Bo. First, anyone can ride on the coattails of his work and make and sell “Eat More Kale” shirts. Second, Chick-fil-A can shut them ALL down. With the USPTO ruling that yes, consumers will see “Eat More Kale” and think it is related to Chick-fil-A, Chick-fil-A can claim consumer confusion and sue Bo (and anyone else making a t-shirt that says “Eat More Kale”). Most t-shirt guys are like Bo, small micro-businesses run by individuals and families, and many don’t have the means or support to fight Chick-fil-A. By claiming consumer confusion, Chick-fil-A’s lawsuit could force Bo to destroy all of his kale shirt inventory, pay Chick-fil-A a fat stack of cash (literally all of his profits for every kale shirt he’s sold in the last 12 years), and never make another kale shirt; Chick-fil-A can force Bo to take down his website.
Eat More Bacon?
Funny how Chick-fil-A hasn’t gone after the “Eat More Bacon” t-shirts, isn’t it?
What you can do
- Go to www.eatmorekale.com and buy an Eat More Kale shirt, donate to Bo’s legal fund, and sign up for the Eat More Kale e-newsletter. Join the community page on Facebook.
- Go to Sum of Us and sign the petition to ask Chick-fil-A to get a life and stop harassing Bo, because “Eat More Kale” does NOT confuse YOU. http://action.sumofus.org/a/chick-fil-A-eat-more-kale/2/5/?akid=3200.527922.s9fzcx&rd=1&sub=fwd&t=2
- Then go read more at Care2 (the petition closed, sadly with few signatures): http://www.care2.com/causes/eat-more-kale-guy-fights-on-against-corporate-bullying.html
- Go to Take Part and read more: http://www.takepart.com/article/2013/04/30/chick-fil-doesnt-want-you-eat-more-kale
- Or read about it on the Huffington Post: http://www.huffingtonpost.com/pete-mason/eat-more-kale_b_1469661.html
- Or the New York Times: http://www.nytimes.com/2011/12/05/us/eat-more-kale-t-shirts-challenged-by-chick-fil-a.html?_r=0
- Tell your friends.