Food Industry’s David vs. Goliath?

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It’s the Monday after Thanksgiving, and I’m back (and recovered from the 48-hour insulin coma fest I put myself through). What can I say: I’m powerless when it comes to my mom’s homemade apple pie.  And don’t even get me started when it comes to stuffing and pumpkin rolls.

Needless to say, it was great to see my entire family and spend some quality time with them – as it is, I’m only able to make it home once or twice per year. But I’d be lying if I said I didn’t spend the rest of the weekend trying to detox my body. Once we made it back to Boston Saturday night, Lisa and I bee-lined it to Trader Joe’s and bought enough greens to feed an army.

Which serves as a perfect segue to today’s dose of WTF.

Last week I was sent THIS (includes video) story from a local news station about a New England area artist, Bo, who’s also a small biz owner behind the slogan “Eat More Kale.” It’s a labor of love for Bo, who’s been hand making EVERY t-shirt that’s ordered for the past eleven years. He even made mine, which Lisa got for me last year for my birthday.

I love it. I can’t even begin to tell you how many times I’ve been walking around with it on, and some random person approaches me and asks “what the heck is kale?” or comments “your shirt rocks!”  What’s more, one time, I even had someone walk past me and throw me a friendly high-five and say “I eat kale, too!”  As if to imply that we were both part of some secret society.

It’s a conversation stimulator if there ever was one. Plus, the t-shirt clearly increases the gunnage factor of my arms, which is always cool.

Anyways, as I noted above, Bo has been using this slogan for upwards of eleven years and he’s FINALLY reached the point where he’s ready to grow and make this thing go viral. He applied for a federal trademark recently only to receive a document from a lawyer stating that “Eat More Kale” too closely resembled that of the fast food chain Chick-fil-A, who’s slogan “Eat Mor Chikin,” clearly draws from the exact same audience (note sarcasm).

 

Lets think about this for a second. While I’m a clear exception, I’d have to say 80-90% of the people who purchase an Eat More Kale t-shirt are most likely vegetarian.

Moreover, what’s the likelihood that anyone who goes out of their way to purchase an “Eat More Kale” t-shirt would even step foot in a fast food chain?

Taking it a step further, how can anyone claim the slogan “Eat More…..[insert whatever you want here]” as their own?  So, if I were to make a shirt that said Eat More Diarrhea, would Chick-fil-A come after me?????

According to the lawyer, who’s clearly a douchebag to the douchiest degree, Eat More Kale:

“…….is a clear encroachment upon Chick-fil-A’s prior and superior nationwide trademark rights.”  Furthermore, Chick-fil-A somehow feels that Bo’s one-man show t-shirt company is deluding the profits of their corporation.

I just feel that this is probably the most absurd thing I have ever heard, highlighting corporate bullying at its finest, and just goes to show that big food are a bunch of dicks.

Do me a favor, if this pisses you off just as much as me, go HERE to sign a petition that will demand that Chick-fil-A stop being a bunch of a-holes and prevent them from blocking EAT MORE KALE’s attempt at a federal trademark.

Consider it your good deed for the day.

 

 

 

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  • Jonathan

    Wait? A single person making t-shirts one-by-one is taking measurable profits away from a massive corporation. I think they need to go back and check their balance sheets. Maybe they’ll find that they spent more on the lawyers letter than this guy would have cost them in lost business

    • Anonymous

      Exactly my thought process as well, Jon! Absolutely redunkulous.

  • Jeroen

    How can a company claim something as generic as ‘Eat more …’? Anybody should be able to use that.

    • Anonymous

      Reminds me of that scene in The Social Network where Zuckerberg equates Facebook to a chair. Just because someone comes up with a better designed chair, doesn’t mean you can sue him for it.

      • Elelsnow

        Or how Susan g. Komen tried to tm “for the cure” and tried to sue other causes. That’s low…

  • David Morales

    Good deed for the day done.

  • Kellie

    I just purchased 4 bunches of kale this morning and had no idea it was a franchise started by Bo the artist. Here all these years I thought it was a plant grown by gardeners and farmers. Thanks for clearing that up, Chick-fil-a lawyer. Ps, you might want to tell Bo he is spelling his copycat phrase incorrectly. I will now remember to tell my children to insert more vegetables in their mouths, chew, then swallow as not to impede on your branding territory…

    … Okay, going to sign the petition now.

  • Anonymous

    From an online client of mine who happens to be a lawyer:

    Your kale friend should talk to an intellectual property lawyer. Federal registration isn’t necessary to create a trademark. It just registers a trademark and that gives the owner certain presumptions under the law. But you can have a trademark (the TM) without having a registration (the R in a circle).

    All of which is to say Eat More Kale might already be your friend’s trademark. And if he has been using it longer than the Mor Chikin campaign, he should be in the clear.

    And even if not, your instincts are right on the money. There is only infringement if there is a “likelihood of confusion” as to the source of the goods or sponsorship or approval of the goods. There are a variety of factors courts look at to determine likelihood of confusion, but none seem relevant here.

    Don’t be too mad at Chik Fillet for sending the letter. A trademark owner that ignores an infringement can be said to have abandoned the mark, making it unenforceable against anyone. But a good f-off letter from your friend’s lawyer should go a long way.

  • Nick

    It’s big company flexing it’s big muscle again to try and squash any type of infringement no matter how insane.

    Read this one the other day: http://www.techdirt.com/articles/20111121/12234916866/tootsie-roll-suing-footzyrolls-over-trademark.shtml
    Given the name is getting close…but on the basis that it creates confusion…really? are people that stupid that we have to protect them from eating their shoes? Crap…I thought this was a piece of crappy chocolate flavored plastic…didn’t realize it was a shoe.

    Same thing here…what someone seeing a shirt about kale is going to think of chick-fil-a? come on now

  • Anonymous

    I signed their petition a couple weeks ago 😀

    • Anonymous

      You’re a great man Craig. Hope things are well your way!

  • BC

    I want to wear that shirt, go a vegeterian/vegan restaurant rocking it, sit on the curb and eat a giant ribeye served over a kale salad.

    • Anonymous

      LOL – I’d be down with that. As a funny aside: I was wearing my Eat More Kale shirt one night and someone started a conversation with me basically assuming I was a vegetarian. He started spouting out some jibberish on how red meat is so bad, blah blah blah. I had to set the record straight and state that as much as I love kale, I love eating dead animal flesh even better.

  • At least you spelled out “more” doesn’t that make a difference?

  • R Smith

    Talk about depths of stupidity. Wow! Happily signed the petition.

    RS

  • Rees

    Dumb dumbs

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