[author: Steve Baird]
As you will recall, we have followed pretty closely Chick-fil-A’s “Eat Mor Chikin” trademark claims against Vermonter Bo Muller-Moore and his “Eat More Kale” trademark:
Although I initially indicated we’d save a postage stamp and not submit a Freedom of Information Act request for a copy of the successful Letter of Protest to confirm the protestor’s identity (as there was little doubt that it was submitted by Chick-fil-A), on second thought, our curiosity about the contents of the submission got the better of us, so here are pdf links to the Chick-fil-A Letter of Protest submission that we obtained from the USPTO, enjoy:
What do you think, does Chick-fil-A’s Letter of Protest meet the USPTO’s requirements for an ex parte Letter of Protest? I have questions about the highly argumentative nature of the submission, which is supposed to be focused on simply providing appropriate evidence that may support refusal of registration. I question the ex parte attempt to prove fame. I also question the ex parte listing (without underlying support) of thirty-one former third-party marks containing EAT MORE, whose owners/users “agreed to cease and permanently desist their use of, and in several instances have withdrawn federal application to register, the marks . . . .”
Frankly, this kind of evidence seems more appropriate for an inter partes opposition proceeding.
And, from a more technical and procedural perspective, the Chick-fil-A submission totaled 85 pages (5 page Letter of Protest and 80 pages of evidence), so it appears the USPTO waived the following requirements found in TMEP 1715.04:
“A separate itemized index must accompany any submission of evidence exceeding 75 pages or the letter of protest may not be considered. Moreover, the Office encourages the use of an index in all letters of protests that contain multiple forms of evidence as its aids in the consideration of the details of all the evidence provided by the protestor. The index must be provided on plain paper (not letterhead) and contain a concise factual description of each category or form of evidence included. To maintain the integrity of the ex parte examination process, the index should not identify the protestor or its representatives or contain any arguments or persuasive language.”
Stay tuned because Bo Muller-Moore has until September 27, 2012 to respond to the USPTO’s Office Action and registration refusal based on the three Eat Mor Chikin trademark registrations.