The Silver Lining for the Little Guy in Threatened Trademark Litigation

 

We have another case of the “big bad company versus little guy” again, making me think about the amusing South Butt trademark case a few years back when I was in law school (which ended in a confidential settlement, and now the <thesouthbutt.com> website is no longer accessible). I imagine the 18 year old kid’s South Butt clothing company was bought out for a nice sum.

Here, we have Vermont t-shirt company (little guy) “Eat More Kale” against “Chick-fil-A” ($3.5 billion revenue). Chick-fil-A has been sending cease and desist letters to Eat More Kale owner Bo Muller-Moore, citing infringement of Chick-fil-A’s “Eat Mor Chikin” trademark, registered for clothing items, including tshirts. The cease and desist letters are claiming that Eat More Kale activities are likely to confuse the public and dilutes the distinctiveness of Chick-fil-A’s trademark. All the while, this has become huge news, and driving major amounts of traffic to <eatmorekale.com>.

Chick-fil-A is basically claiming that the public which is seeking out “Eat Mor Chikin” apparel is likely to be confused with “Eat More Kale” shirts, the crux behind a likelihood of confusion claim. (also see, the typical likelihood of confusion test). Trademark serve the purpose of letting consumers know the origin or source of a certain product. If a part of the public thinks that Eat More Kole shirts are produced by Chick-fil-A, Chick-fil-A may have a valid claim.

Chick-fil-A is also making a trademark “dilution” claim. The premise of a dilution claim is not that consumers are necessarily confused by the trademark, but rather that the infringer is slowly whittling away the ability of the trademark to be a clear indicator of one source; that the more companies with marks like Eat More Kale are allowed to exist, the weaker Eat Mor Chikin becomes as a trademark.

Here are some of the t-shirts in question:

Eat Mor Chikin

Eat More Kale

Eat Your Kale by Eat Mor Chikin (interesting site, using “Eat Mor Chikin” banner but selling “Eat Your Kale” tshirts. Perhaps this is a parody of the whole situation itself?)

While the artistic design of these shirts are obviously different, a likelihood of confusion case is not based only on the artistic similarities. The effect of the shirts will be analyzed against the “relevant” consuming public.

Regardless of what happens with the case, one thing is for sure: Eat More Kale is selling a lot of t-shirts right now. I think Chick-fil-A didn’t read my blog post on how social media can be the ultimate equalizer against a large legal war chest.

 

– ck