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Chick-fil-A says, “Eat Mor Chikin…..And Kale.”

On Behalf of | Jan 26, 2016 | Legal Blog

I don’t know about you, but I just don’t get kale. I’ve read the articles about it being a “nutritional powerhouse” and I know it’s supposed to be part of the proverbial balanced diet, but I don’t find the taste or the consistency very appealing. When I sit down at a fast food restaurant to eat a chicken sandwich (instead of a bacon cheeseburger), I’d prefer a side of crispy French fries or creamy coleslaw.

So, imagine my surprise when I discovered there’s s a guy in Vermont who not only sells t-shirts emblazoned with the phrase “Eat more kale,” but went so far as to apply for registration of the trademark for the phrase and withstood opposition from the national chicken franchise Chick-fil-A. And then imagine my double surprise when I learned that Chick-fil-A recently dumped its popular coleslaw side dish in favor of a kale salad. What’s the world coming to?

This bizarre saga began back in 2000 when Vermont folk artist Robert Muller-Moore began making t-shirts with the phrase “Eat More Kale” across the front and sold them to help promote a friend’s kale farm. When the phrase caught on, Bo (Robert’s friends call him “Bo”) began putting them on other clothing as well as bumper stickers and a cult of sorts grew up around the phrase.

In fact, the phrase became so popular that in 2011 Bo applied for trademark registration with the U.S. Patent and Trademark Office. The only problem was that a certain chicken franchise already was using a similar trademark to promote its fast food. Chick-fil-A had popularized the broken English slogan “Eat Mor Chikin” and often used it in advertising spots featuring real cows plastering the slogan in places where consumers were seen enjoying hamburgers and other beef products.

When Chick-fil-A learned of the registration application, it sent Bo a cease and desist letter. In the letter, Chick-fil-A argued that “Eat More Kale” was an improper infringement of the company’s trademark rights and told him to stop using the phrase because the company felt it could be confused with “Eat Mor Chikin.” Chick-fil-A holds several registrations for the phrase (USPTO TM Reg. Nos. 2010233, 2062809, 2240326, 2197973, 2538050, and 2538070). Chick-fil-A also cited more than thirty examples of others who had tried to use the “eat more” phrase and had stopped after the company confronted them.

Bo wasn’t intimidated. And, when he decided not to back down, he found support from Vermont Governor Peter Shumlin and a team of pro-bono lawyers, including law students from the University of New Hampshire legal clinic. Eventually, even the Trademark Office sided with him and in late 2014 it issued a registration for “Eat More Kale” despite Chick-fil-A’s objections (USPTO TM Reg. No. 4795440).

When the trademark victory was announced, Governor Shumlin proclaimed, “The message is out: Don’t mess with Vermont. And don’t mess with Bo. This isn’t just a win for the little guy who stands up to a corporate bully; it’s a win for our state.”

But then, Chick-fil-A seems to have decided that if you can’t beat ’em, join ’em and last week announced that the company is replacing coleslaw as a side option with what it calls the Superfood Side, featuring kale, the hybrid vegetable broccolini, dried cherries, and nuts. And in a move that Bo believes was intended to tweak him and the state of Vermont, it included with the Superfood Side a maple syrup salad dressing. Maple syrup is a popular Vermont foodstuff.

Why It Matters. As with kale, I’m not a big fan of Chick-fil-A either so the likelihood I’ll ever order a kale salad, even if by accident’ is extremely remote. Nevertheless, Bo Muller-Moore’s trademark victory is symbolic of the power of doing what is right even in the face of intimidating corporate opposition. Of course, Chick-fil-A spokeswoman Carrie Kurlander may have been more prescient than she realized when she responded to the news about the 2014 registration with the official statement, “Cows love kale, too!”