Driving home from work the other day I was listening to NPR and heard a story about a battle between Chick-fil-A and a small Vermont T-shirt manufacturer who is producing T-shirts saying “Eat More Kale.” Chick-fil-A owns the tagline “Eat Mor Chikin” and, indeed, the corporation has done a splendid job advertising their fast food chicken restaurants through the Eat Mor Chikin campaign. It seems that the T-shirt manufacturer, Bo Muller-Moore, has been doing a booming business producing “Eat More Kale” shirts out of a studio above his garage and has enough orders to support himself. He decided it would be wise to apply for a trademark for “Eat More Kale” and was confronted by a cease and desist letter from the chicken guys. In a statement, Chick-fil-A said, “We must legally protect and defend our “Eat mor chikin” trademark in order to maintain rights to the slogan.”
Laws regarding trademark and patent infringement are complex, which is why we always tell our clients to consult with their own trademark lawyers or use one of ours. But one test of trademark infringement is whether there would be confusion in the marketplace or whether the existing brand equity would be diluted. Muller-Moore’s lawyer commented in a New York Times article, “There’s no one out there that’s going to come forward and say, ‘I thought I was buying a Chick-fil-A product but I got this T-shirt.” Add to that the fact that the food chain does not have a franchise operating in Vermont so there is even less chance for confusion.
Can a company or brand own words exclusively? Clearly many wonderful campaigns have been copied such as the Got Milk? campaign that I wrote about several weeks ago. Harley Davidson has copyrighted the sound of their motorcycle—and no other motorcycle or bike can use the same sound. But can you hold a copyright to the words “Eat More”? I did a quick search on Google to see how many “Eat More” campaigns and ads there have been. Witness just a few.
Clearly there have been many campaigns that have used the the words “Eat More.” And it is equally clear that Chick-fil-A has done a superb job of imprinting their brand through their deft ad campaign. So what has been accomplished and what are the effects of this lawsuit? Well, Eat More Kale has gotten way more publicity than they ever thought possible, getting national coverage in the NY Times and an NPR spot. Muller-Moore has tapped social media and drew incredible support from Facebook followers, both a former and the present governors of Vermont, and a groundswell of kale lovers nationally.
At a recent press conference, Governor Peter Shulmin of Vermont noted, “If you think that Vermonters don’t understand the difference between kale and a chicken sandwich, we invite you to Vermont, and we’ll give you a lesson about the difference between a kale and a chicken,” Shumlin said. “There are some very distinct features that should be noticed in that difference. Kale is a vegetable; chickens are birds. Birds create manure; kale eats manure.”
What has the Chick-Fil-A brand gained—a tarnished reputation as a corporate bully that flies in the face of its humorous campaigns. How many people will look at the cows and think of the “Eat More Kale” controversy and leave with a bad taste in their mouths? With little possibility of confusion and not even one Chick-fil-A restaurant in Vermont, one has to wonder if this was a giant mistake by the Chick legal department with little thought how it might effect their brand. In this case their cease and desist order may have a real correlation to less counter orders. Governor Shumlin sent this message to Chick-fil-A, “Don’t mess with Vermont. Don’t mess with kale. And, Chick-fil-A, get out of the way because we are going to win this one.” (Source: NPR.org—Chicken Vs. Kale, Kirk Carapezza)