28 November 2011

Markedly Stupid

Chick-Fil-A, not content with simply making tasty chicken sandwiches, has decided to sue someone “infringing” on their intellectual property:

A folk artist expanding his home business built around the words "eat more kale" says he's ready to fight root-to-feather to protect his phrase from what he sees as an assault by Chick-fil-A, which holds the trademark to the phrase "eat mor chikin."
Bo Muller-Moore uses a hand silkscreen machine to apply his phrase, which he calls an expression of the benefits of local agriculture, on T- and sweat shirts. But his effort to protect his business from copycats drew the attention of Chick-fil-A, the Atlanta-based fast-food chain that uses ads with images of cows that can't spell displaying their own phrase on message boards.
In a letter, a lawyer for Chick-fil-A said Muller-Moore's effort to expand the use of his "eat more kale" message "is likely to cause confusion of the public and dilutes the distinctiveness of Chick-fil-A's intellectual property and diminishes its value."

This case is patently absurd.  To paraphrase Groucho Marx, I am sure that the average American could learn in time to distinguish between chicken sandwiches and kale.  The “eat more kale” slogan is not going to diminish the “eat mor chikin” slogan for the very simple reason that Chick-Fil-A is not, nor has ever been, known for selling kale.  It’s known for selling chicken sandwiches.  It’s not Kale-Fil-A, after all.

Additionally, the phrase “eat more…” is hardly original to Chick-Fil-A.  Mothers have for decades urged their children to eat more of food that is generally considered good, like vegetables.  You can do a Google search for “eat more [fill in the blank with your choice of food] and you will dozens of websites dedicated that very exhortation, regardless of what food you choose.  “Eat more…” is hardly a revolutionary slogan, and is not deserving of trademark protection in the first place.

And yet:
Chick-fil-A, which trails only Louisville, Ky.-based KFC in market share in the chicken restaurant chain industry, has a long history of guarding its trademark, and the letter listed 30 examples of attempts by others to co-op the use of the "eat more" phrase that were withdrawn after Chick-fil-A protested. The Oct. 4 letter ordered Muller-Moore to stop using the phrase and turn over his website, eatmorekale.com, to Chick-fil-A.

Recall that federal IP law is based on a utilitarian view of IP. The whole purpose of IP laws is to promote economic growth.  Therefore, it behooves the judge of this case to ask whether shutting down one man’s business is really beneficial to the economy.  More specifically, the judge should determine whether shutting Chick-Fil-A will profit from shutting down Eat More Kale, and whether the additional profits will outweigh the costs.  Assuming the judge wants to keep the spirit of the law, that is.

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