Which came first… the CHIKIN or the KALE? (Trademark Infringement Claim) Reply

photoWould you confuse a dude wearing a T-shirt that says “EAT MORE KALE” with a Chick-fil-A product sold under the slogan “EAT MOR CHIKIN”?

…I’m guessing there is a 99.9% chance that you wouldn’t confuse the two.  (Ask any 3 year old… they NEVER confuse a leafy green or healthy snack of any kind, with a chicken nugget.)

Evaluating how likely you are to be confused as to the source of the products is a fundamental aspect of evaluating a trademark infringement claim.  In this EAT MORE KALE vs. EAT MOR CHIKIN trademark infringement claim, Chick-fil-A sent a cease and desist letter to Mr. Bo Muller-Moore who hand-prints and sells  “EAT MORE KALE” T-shirts.  The letter challenged the EAT MORE KALE mark by claiming that it is likely to cause consumer confusion and have a negative impact on the Chick-fil-A trademark.  (Chick-fil-A allegedly sells 537 sandwiches a minute under the EAT MOR CHICKIN mark.)

Since the likihood of consumer confusion is slim, in this case, Mr. Bo is challenging Chick-fil-A’s infringement claim… and doesn’t have any plans to cease and desist his T-shirt printing business.  (As of today… his website says he cannot fill any more orders for EAT MORE KALE shirts before Christmas.   It seems the media coverage of this dispute may have boosted Mr. Bo’s business.)

BY: Vanessa Kaster, Esq., LL.M.

For personalized legal services you are welcome to contact me at vk@kasterlegal.com

For more information: http://eatmorekale.com/ and http://www.nytimes.com article on 12/5/11 Chicken Chain Says Stop But T-Shirt Maker Balks and USPTO Serial No. 85412053 – “Eat More Kale”; USPTO Reg. No.  2197973, 2240326  – “Eat Mor Chikin;” @iplegalfreebies and www.kasterlegal.com.

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