Hard To Digest Trademark Ruling

The United States Patent & Trademark Office, responsible for reviewing, approving or disapproving trademark and patent applications recently rendered an opinion denying a request for a trademark, which may not qualify as one of its better decisions.

At issue was the application of a granola crunching Vermont artist’s application to obtain a trademark for the phrase “Eat More Kale.” For over ten years, Robert Muller-Moore sold t-shirts with the vegan slogan to promote local farming. Muller-Moore filed for trademark protection with the U.S. Patent and Trademark Office for the combination of words. However, the USPTO rejected his application finding that the phrase “Eat More Kale” is “likely to be confused” with the large fast food chain, Chick-fil-A’s slogan: “Eat More Chikin.”

Eat More Kale v. Eat More Chicken? Based on this ruling, the USPTO is giving an intellectual property monopoly to Chick-fil-A to use the phrase “Eat More…” According to its decision, only the chicken people can use the phrase “Eat More” anything, w hether it is animal, vegetable, fruit or what have you. Would you really be confused into believing that “eat more beef, candy, salad, kale, oranges, hot dogs, etc.” is brought to you by the “eat more chikin” people?

What is the legal basis for such a clucked up decision? Section 2(d) of the Trademark Act bars any registration of a trademark that so resembles a previously registered trademark that that

potential consumers are likely to be confused regarding the source of the goods. In rejecting Muller-Moore’s application, the USPTO roundly concluded that “Eat More Kale” is so similar to Chick-fil-A’s “Eat More Chikin” trademark that consumers are likely to be confused as to whether items bearing “Eat More Kale” slogan came from Chick-fil-A. That means the chicken people have a total lock and block on “Eat More” ANYTHING in the U.S. stream of commerce.

In determining whether a trademark is likely to confuse consumers, the USPTO looks at whether the marks create the same overall impression in the mind of the consumer. The office has held that even marks that do not physically sound or look alike, but that convey the same idea, stimulate the same mental reaction, or have the same overall meaning are likely to confuse consumers.

Another example: The USPTO found a likelihood of consumer confusion between the trademark “Chicken of the Sea” for canned tuna and “Tuna ‘O the Farm” for canned chicken because they convey the same general idea. Tuna ‘O the Farm! Brilliant idea, but there is something fishy about that one, which capitalizes on the famous chicken of the sea slogan.

“Eat more” on the other hand is a far more generic phrase than chicken of the sea. The USPTO went overboard on the Eat More Kale application. The decision that “Eat More Kale” and “Eat More Chikin” are likely to cause consumer confusion because both leave the same impression in the mind of the consumer, to eat more of a common type of food, is ridiculous.

If the artist has the means to pursue this issue further, he should get some relief in the courts, which would review the agency’s ruling. Although the court will put some weight on the fact that both slogans begin with the same first two words, which courts have held creates a higher likelihood of consumer confusion, other factors here suggest the opposite conclusion. Here, while we are talking about food (eat more), the type of food is sufficiently dissimilar so that the reasonable consumer would not be confused that raw kale would be a product of the deep fried chicken slinging fast food outfit.