MONTPELIER — The same week Bo Muller-Moore raised nearly $90,000 to make a documentary about his trademark battle with a chicken sandwich company, the U.S. Patent and Trademark Office rejected his “Eat More Kale” trademark application.
It’s not a final rejection, but the trademark office lawyer said that “Eat More Kale” was confusing with Chick-fil-A’s “Eat Mor Chikin” trademark.
Muller-Moore said that when he heard the news Tuesday evening he was sick to his stomach.
The Georgia-based fast-food company formally challenged the “Eat More Kale” trademark application Muller-Moore submitted last year.
His lawyer, Daniel Richardson, said they have an opportunity to appeal the trademark office’s decision. This isn’t the end of the fight.
“It’s a setback, but it’s not the end of the case,” Richardson said.
However, if Muller-Moore loses the trademark appeal, does that mean he automatically has to comply with Chick-fil-A’s cease and desist?
That’s the bigger threat to Muller-Moore and his “Eat More Kale” T-shirt business.
Chick-fil-A is not only challenging Muller-Moore’s ability to trademark “Eat More Kale,” the company is also requesting that he stop printing those three words on T-shirts and stickers altogether.
“They don’t have to be right,” Richardson said of Chick-fil-A.
The company has deep pockets. In 2010, Chick-fil-A reported more than $3.5 billion in gross sales. Muller-Moore would need to sell 143 million T-shirts at $25 a pop to hit sales figures like that.
And Richardson, who is currently working on the case pro bono, said that the median trademark lawsuit costs $775,000.
The cease and desist request by Chick-fil-A, he said is a separate matter from the trademark application dispute.
And while the trademark fight with Chick-fil-A wends its way through the bureaucratic process, on Sunday, Muller-Moore’s online fundraising campaign raised $89,700 to make a documentary about his battle with Chick-fil-A.
There’s certainly a yin and a yang to everything that’s happened this week, Muller-Moore said Wednesday.
Richardson said that without a lot of money, Muller-Moore has to try and make his case by attracting public attention, hence the documentary titled “A Defiant Dude.”
Filmmaker Jim Lantz, of Burlington, said that last year he was kicking around several ideas for his next film and he kept coming back to Muller-Moore’s legal skirmish with Chick-fil-A.
He said that he met with Muller-Moore a couple of times, and concluded that his is a story that needs to be told right now.
It amounts to “corporate bullying,” Lantz said.
Muller-Moore’s case represents a microcosm for what’s happening, he said, all over the country.
Last year, Procter and Gamble settled out-of-court with a Connecticut housewife in the case of Willa v. Wella.
The company claimed that Christy Prunier’s pre-teen skin Willa product sounded too much like Procter and Gamble’s own Wella hair care brand.
It’s a war of attrition, Lantz said, and small businesses have a hard time lasting against companies like Chick-fil-A that reportedly sold 537 chicken sandwiches a minute in 2010.
“This is a large company bullying a T-shirt artist who works in his garage in Vermont,” Lantz said.
Lantz is hoping to have the film done by the end of the year. He said he’s already shot more than 20 hours of footage.
Making a full feature film, he said, is a bit of a lifelong dream, so he’s excited about the project.
Requests seeking comment by Chick-fil-A for this story went unanswered.