[author: Steve Baird]
Eating more isn’t necessarily a bad thing. Yeah, I saw the documentary Super Size Me; admittedly, I haven’t viewed certain fast food the same way since, but it all depends on what it is you’re eating, right? Common sense dictates that if it’s good for us, we should eat more of it. Indeed, Lexi Petronis of Glamour writes this about the 2010 U.S. Dietary Guidelines: “In fact, several of the guidelines tell us to eat more–more dairy, more seafood, more fruits and veggies.” WebMD adds a few items to their own “eat more” listing as well:
Now, when a specialty fast food restaurant chain and trademark owner adopts a tagline that includes such a basic and competitively necessary message as “eat more” — of the core food it sells – at least these trademark questions necessarily arise: is the tagline even distinctive (does it point to a single source) and, if so, how strong and broad can the rights be? I’d also add, is dilution-style fame even a possibility for such a tagline?
As you know, we’ve been monitoring, scrutinizing, and breaking news on Chick-fil-A’s efforts to prevent federal registration of Robert “Bo” Muller-Moore’s “Eat More Kale” tagline and trademark, based on Chick-fil-A’s “Eat Mor Chikin” tagline and trademarks – still no federal district court lawsuit, as far as we know. And, as you will recall, I’ve expressed some serious doubts about Chick-fil-A’s claim of likely confusion between the “Eat Mor Chikin” and “Eat More Kale” taglines and marks.
To me, what makes Chick-fil-A’s tagline distinctive is not the words alone, but the seriously mispelled words in the black-ink dripping style, along with the conniving cows who are determined to have fast food customers eat more chicken, and less beef. Had Chick-fil-A adopted a properly spelled tagline “Eat More Chicken” without these unique elements, it is hard for me to imagine the USPTO would have registered it without a serious showing of acquired distinctiveness, and that seems highly unlikely. It would have been like Wendy’s trying to own “Eat More Beef” as opposed to the vastly more creative and distinctive “Where’s the Beef?” tagline.
Nevertheless, the USPTO Examining Attorney assigned to Muller-Moore’s “Eat More Kale” trademark application has now reversed herself (hat tip to Corsearch’s Trademarks + Brands Blog), on the talons of of a successful Letter of Protest (by the way, Geri Haight of Mintz Levin recently did a nice write-up on trademark Letters of Protest), presumably filed by Chick-fil-A, and the USPTO now appears devoted to according the tagline an enormous scope of rights, almost treating it as if Chick-fil-A’s mark were “Eat More” and not the narrower “Eat Mor Chikin”.
So, I must ask, should yours truly eat more crow or humble pie for calling Chick fil A’s trademark allegations regarding “Eat More Kale” baseless?
Or, will counsel for “Bo” be able to overcome the registration refusal for the distinct pleasure and certainty of litigating at the TTAB and having the mark formally opposed by Chick-fil-A?
And what do you make of these additional “eat more” examples? Don’t they make a claim of dilution-style fame difficult?