You are what you eat: EAT MORE CHIKEN versus EAT MORE KALE.

It is perhaps the first time in memory that chicken and kale were the subject of comparison – as reported in the Associated Press, Chick-fil-A has gone after a Vermont artist and his mark EAT MORE KALE, alleging that there is a likelihood of confusion between this mark and Chick-fil-A’s own mark EAT MORE CHIKEN. Bo Muller-Moore, the artist in question, produces various goods with the phrase EAT MORE KALE printed on them. Muller-Moore states that his mark began as a statement on t-shirts supporting local farmers – kale apparently grows quite well in Vermont. Sale of the shirts took off, so Muller-Moore expanded his “kale” product line to include sweatshirts, bumper stickers and the like.

This isn’t the first time that Muller-Moore and Chick-fil-A have crossed paths. A few years ago, the two engaged in a battle of legal letters that eventually burned itself out. Muller-Moore continued making his products under the assumption that the issue had gone away.

However, recently, Muller-Moore was seeing some “eat more kale” copycats on the Internet, and decided to pursue federal trademark registration for his phrase (Muller-Moore filed a trademark application for EAT MORE KALE this summer; as of this posting, the U.S. Patent and Trademark Office has yet to examine it). It appears that this filing, combined with Muller-Moore’s expansion of his business, is what prompted this latest clash with Chick-fil-A. In practice, it is not uncommon for a large company to allow low-level third-party use of marks arguably similar to the company’s mark, but to draw the line at
federal registration of such third-party marks.

While Chick-fil-A comes armed with a list of thirty other “eat more” marks that Chick-fil-A has allegedly stopped (and judging by the number of abandoned “eat more” applications on the USPTO’s database, I see no reason to doubt them), as they say in the securities business, past performance is not indicative of future results. Just because the owners of thirty prior “eat more” marks have folded up their tents doesn’t mean that Muller-Moore will not be successful. Given the differences between the two marks, as well as in the factors considered in analyzing likelihood of confusion such as the marks’ respective use, consumer impression, and channels of trade, Muller-Moore would seem to have a good shot at refuting Chick-fil-A’s claims.