PIKCHUR SUBJEKT TO FARE USE DOKTRIN

Chick-Fil-A, the fast-food chain that uses the slogan “eat mor chikin,” thus brazenly insulting the spelling ability of America’s cows, has been threatening an artist in Vermont with legal action if he doesn’t stop selling shirts and other items bearing the phrase “Eat More Kale.” Bo Muller-Moore says he got a cease-and-desist letter from the chain’s lawyers a few months ago telling him to stop using the phrase—which he has been using for ten years—because it allegedly is “likely to cause confusion of the public” and dilute the value of Chick-Fil-A’s brand.

Is anyone really likely to confuse “kale” with “chikin”? To answer that question, we have to first ask another: What the hell is kale? It’s a green, “leafy vegetable that grows well in Vermont [among other places] and is known for its nutritional value,” says the Huffington Post report. Let’s see—chicken also grows well in Vermont, and is also known for its nutritional value. And I guess you could say it’s sort of “leafy.” Not looking good so far for “Eat More Kale” Guy. On further investigation, though, chicken turns out to be neither green nor a vegetable, so it looks like the answer is OF COURSE NOT.

Muller-Moore has refused to back down, and coincidentally (or not—the company has threatened him before) he had filed his own trademark application last summer, prior to getting Chick-Fil-A’s letter, and that application is still pending. About a week ago, trademark attorney Steve Baird wrote at DuetsBlog that the examiner had considered the “Eat More Kale” application in December and found no basis for refusing to register it on “likelihood of confusion” grounds. He also noticed, however, that a few days later the examiner was told to reconsider in light of a “letter of protest” someone filed. The protester wasn’t named, but oddly enough the prior registrations listed in the letter (which I assume was spelled correctly) just happened to be registered to Chick-Fil-A. As of March 5, the matter was still unresolved.

Although I haven’t found a copy of the cease-and-desist letter, reportedly Chick-Fil-A’s lawyer lists 30 other instances in which someone using an “Eat More [something]” slogan agreed to quit doing so after getting a nastygram from the company. That doesn’t mean those were necessarily valid claims, of course, because for many people it just would not be worth the fight. Unless someone is actually demanding increased consumption of chicken (however it’s spelled), this just seems like bullying. Chick-Fil-A, your sandwiches are good but these tactics are lame.

Having said all that, kale tastes horrible.

UPDATED: a number of kale supporters have written to tell me that kale is actually fine if you cook it. This is entirely possible. Why I might have eaten raw kale at some point, I have no idea, but I can only assume that’s what happened. But regardless of my personal feelings about kale, I support the right to freedom of kale-related speech, so here’s a link to Muller-Moore’s Kickstarter project (he wants to make a documentary), and to a story on Vermont Public Radio in December about the governor’s support for “Team Kale.”