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Kale Imitation

Side Dishes: Trademark attorney rules against Eat More Kale founder

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Last week was a roller coaster for “Eat More Kale” T-shirt artist Bo Muller-Moore. First, he discovered that his Kickstarter campaign to fund a documentary film about his legal tangle with fast-food giant Chick-fil-A had raised roughly $90,000, exceeding his goal by $15,000.

Two days later, Muller-Moore learned that his quest to register a trademark had hit a snag: In a preliminary ruling, an attorney with the U.S. Patent and Trademark Office determined there was a “likelihood of confusion” between Muller-Moore’s “Eat More Kale” slogan and Chick-fil-A’s “Eat mor Chikin” marketing campaign.

Muller-Moore was stunned by the news but vowed to press his case. “There’s still a lot of fighting to be done,” he says.

After Muller-Moore filed to register his “Eat More Kale” trademark last fall, he received a cease-and-desist letter from Chick-fil-A ordering him to stop production and turn over his website. It was the second time in six years that the Southern fast-food chain had tried to shut him down. This time around, though, Gov. Peter Shumlin stepped in to support Muller-Moore and form an advisory Team Kale. As the story spread, Muller-Moore received tons of press — even an international write-up in the Economist magazine — and thousands of orders for his T-shirts.

The trademark attorney’s letter explains that the office compared the two slogans — “Eat More Kale” and “Eat mor Chikin” — on the basis of “appearance, sound, connotation and commercial impression.” Since the two “highly similar marks” are used on clothing, it continued, “consumers are likely to reach the mistaken conclusion that the goods and services are related and originate from a common source.”

“Obviously, I think this is the wrong decision,” says Dan Richardson, Muller-Moore’s attorney, who will assemble evidence to continue pressing Muller-Moore’s trademark request. “We’re going to submit filings to show that there is not, has never been or is likely to ever be any confusion. This has become a galvanizing issue,” Richardson continues. “Bo is not unlike a lot of small businesses out there. What he’s’ getting is essentially the billion-dollar cold shoulder from Chick-fil-A, and I don’t think anyone thinks that’s fair.”

As for Muller-Moore, he doesn’t mince words. “I’ve been selling T-shirts for 11 years. I’ve had thousands of conversations about my T-shirts, and no one had ever brought up this parallel or similarity, with the exception of Chick-fil-A’s lawyers and one federal attorney in the trademark office,” he says. “Who are these people? Do they have any conscience? It’s such a gross misstep of intellectual-property-rights law. I don’t know how the lawyers pursuing it can sleep well at night.”

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