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  • Writer's pictureDenny Esford

Kale v. Chicken – Would A Fast Food Chain Encourage A Supervegetable via Trademark?

“Eat More Kale.” What does that phrase make you think of? Does anything specific spring to mind? Do you think of Chick-fil-A, perhaps? That’s what the fast food chain is claiming in an opposition filing at the U.S. Patent and Trademark Office. Chick-fil-A has a trademark on the phrase “EAT MOR CHIKIN” as a way to promote their chicken sandwiches. The company believes that a Vermont man’s application to trademark the phrase “Eat More Kale” would cause consumer confusion.

This is a situation seen frequently – a big name corporation discovers a smaller company using a phrase that might be similar to one of their own marks and tries to shut the use down. The corporations all claim that the pending mark would cause confusion, which trademark law protects against. In most of these cases, however, the other mark is not likely to cause confusion; instead, the corporation is engaging in what some legal experts believe is overzealous trademark enforcement.

Here, as in many similar cases, it is very unlikely that the public will confuse the two slogans. First of all, there are no Chick-fil-A locations in Vermont. Second, the shirts bearing “eat more kale” are primarily focused in Vermont, but they are growing in popularity due to this suit. Finally, it seems clear to the average consumer that a company urging them to eat more kale is not related to a fast food joint that specializes in fried chicken. Common sense and a little outside knowledge seems to be enough to counteract any potential confusion.

In the past, the United States Patent and Trademark Office has seen many of these suits, such as the “Vermonster,” “Chewy Vuitton,” and the “Frappicino” beer. In these cases, big name companies like Hansen Beverage Company (who owns Monster Energy drinks), designer Louis Vuitton, and Starbucks all sued much smaller companies on infringement claims. In each case, however, the chance for actual confusion was minimal. It was doubtful that beer drinkers in Vermont would confuse the Vermonster beer sold at a local bar with the popular energy drink, unlikely that the high end customers of Louis Vuitton would truly believe the company was marketing dog chew toys, and questionable whether people who frequented a small pub in Missouri would confuse the draft beer with the Starbucks beverage. Hightower, Jim. “A Corporate Monster v. “The Vermonster”.” Illinois Times. N.p., 29 Oct. 2009. Web. 14 Sept. 2014; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007); Lacey-Bordeaux, Emma. “Starbucks Goes after Pub for ‘Frappicino Beer”; Pub Sends $6, Hilarious Response.” CNN. Cable News Network, 01 Jan. 2014. Web. 14 Sept. 2014.

Major companies who own trademarks certainly have a right to enforce them, and like the classic case of Kleenex, could actually lose rights to their marks if they don’t. But clearly there comes a point when enforcement becomes excessive. When there is little chance of confusion, it seems a waste of effort and needless infliction of legal trouble onto a small company. Companies should be more aware of this occurrence and actively avoid overzealous enforcement by taking into account who they are suing and whether they believe infringement could actually exist.

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