Search Site
226 Lenox Ave. | New York, New York 10027
Free Consultation 212-406-9466
Hard To Digest Trademark Ruling

The United States Patent & Trademark Office, responsible for reviewing, approving or disapproving trademark and patent applications recently rendered an opinion denying a request for a trademark, which may not qualify as one of its better decisions.

At issue was the application of a granola crunching Vermont artist’s application to obtain a trademark for the phrase “Eat More Kale.”  For over ten years, Robert Muller-Moore sold t-shirts with the vegan slogan to promote local farming.   Muller-Moore filed for trademark protection with the U.S. Patent and Trademark Office for the combination of words.  However, the USPTO rejected his application finding that the phrase “Eat More Kale” is “likely to be confused” with the large fast food chain, Chick-fil-A’s slogan: “Eat More Chikin.”

Eat More Kale v. Eat More Chicken?  Based on this ruling, the USPTO is giving an intellectual property monopoly to Chick-fil-A to use the phrase “Eat More…”   According to its decision, only the chicken people can use the phrase “Eat More” anything, whether it is animal, vegetable, fruit or what have you.  Would you really be confused into believing that “eat more beef, candy, salad, kale, oranges, hot dogs, etc.” is brought to you by the “eat more chikin” people?

What is the legal basis for such a clucked up decision?  Section 2(d) of the Trademark Act bars any registration of a trademark that so resembles a previously registered trademark that that potential consumers are likely to be confused regarding the source of the goods.  In rejecting Muller-Moore’s application, the USPTO roundly concluded that “Eat More Kale” is so similar to Chick-fil-A’s “Eat More Chikin” trademark that consumers are likely to be confused as to whether items bearing “Eat More Kale” slogan came from Chick-fil-A.   That means the chicken people have a total lock  and block on “Eat More” ANYTHING in the U.S. stream of commerce.

In determining whether a trademark is likely to confuse consumers, the USPTO looks at whether the marks create the same overall impression in the mind of the consumer.  The office has held that even marks that do not physically sound or look alike, but that convey the same idea, stimulate the same mental reaction, or have the same overall meaning are likely to confuse consumers.

Another example:   The USPTO found a likelihood of consumer confusion between the trademark “Chicken of the Sea” for canned tuna and “Tuna ‘O the Farm” for canned chicken because they convey the same general idea.  Tuna ‘O the Farm!  Brilliant idea, but there is something fishy about that one, which capitalizes on the famous chicken of the sea slogan.

“Eat more” on the other hand is a far more generic phrase than chicken of the sea.   The USPTO went overboard on the Eat More Kale application.  The decision that “Eat More Kale” and “Eat More Chikin” are likely to cause consumer confusion because both leave the same impression in the mind of the consumer, to eat more of a common type of food, is ridiculous.

If the artist has the means to pursue this issue further, he should get some relief in the courts, which would review the agency’s ruling.   Although the court will put some weight on the fact that both slogans begin with the same first two words, which courts have held creates a higher likelihood of consumer confusion, other factors here suggest the opposite conclusion.   Here, while we are talking about food (eat more), the type of food is sufficiently dissimilar so that the reasonable consumer would not be confused that raw kale would be a product of the deep fried chicken slinging fast food outfit.

Contact us

Please fill out the form below and one of our attorneys will contact you.

Quick Contact Form

Our Office
  • New York Office
    226 Lenox Ave.
    New York, New York 10027
    Phone: 212-406-9466
    Fax: 212-406 9410
  • "Lenox Avenue attorney Carmen Giordano is honest, experienced and determined to win. He and his staff consistently provide incredible customer service and a solid commitment to serving the Harlem community."  -Daniel “Dapper Dan” Day

  • "I initially hired Carmen S. Giordano in 2005 to represent Be & D, our high-end ladies accessories division, in litigation with one of our major suppliers. Mr. Giordano quickly and efficiently collected pertinent information and was able to obtain a judgment that I considered most satisfactory. I have continued to ask Mr. Giordano to represent us in domestic and some international matters. I know that I can rely on his legal advice, and I deeply appreciate his personal warmth and genuineness whenever I contact him."  -Larry Dumain

  • "Recommend Carmen Giordano?” You cannot “recommend ” a friend, you have to experience the warmth the caring, the true concern to help you with your problem . It’s an “experience ” to to hear the sound advice and how to proceed with a dilemma. Yes, Carmen is a true “trailblazer”, a “template ” for other attorneys, in his total concern for his client/friend and how to help. He is also very well supported by his staff."  -Peter Grinenko

  • "Carmen is an OUTSTANDING Lawyer. This guy really gets things done! I never met a lawyer who put in so much effort and hardwork into their cases . I met Carmen about a month ago where i had a real messy case and a month later my case was settled. I recommend him as a lawyer 100%. This guy is the real deal!"  -Mancita

  • "I have been very happy with the work Carmen has led on my behalf. He is responsive and completely reliable and trustworthy. I know I can always depend on him to make sound recommendations on my behalf. He knows the law from A to Z and stays current on changes in the law whether it’s estate planning, employment issues or legal matters for same-sex couples. He has as comfortable style which helps clients be at ease and he always takes the time to explain concepts and implications so we can arrive at informed decisions together."  -Jack T

  • "Carmen helped me fight a case against a crooked Psychiatrist named forester. We settled the case and therefore won. With the win and the money, I was able to rebuild my life to some degree. Lawyers don’t get much better than this guy. Thank You again Carmen!"  -Jon

  • "Mr. Giordano is honest, trustworthy, efficient, thorough & caring. He is professional & personable. He truly cares about his clients. I highly recommend him."  -Kim

  • "Carmen Giordano is the embodiment of everything you would hope to find in a lawyer; he is trustworthy, sincere and knows his stuff. He comes highly recommended from such a vast cross-section of people–from mutual friends at the National Action Network, to clothing designers and music producers. Having experience in such a variety of areas makes Giordano one of the most well rounded attorneys I know. I wholeheartedly recommend him because unlike some in his industry, he really looks out for you. And from the times I have been in his office, he truly represents everyone from the falsely accused in Harlem, with nowhere to turn, to big shots, including top musicians and an occasional judge."  -Michelle

  • "I highly endorse this lawyer. He has great integrity and very broad experience in litigation. He has had great success in achieving excellent results for his clients; provides vigorous and reliable representation to each client; and has excellent judgment in assessing the merits of a claim."  -Margaret King, Attorney

  • "Carmen Giordano came to my rescue when I needed it most. I was a passenger in a taxi that crashed, leaving me badly injured and unable to work or take care of my 3 children. The taxi company tried to downplay my injuries and my losses. But Carmen fought for me every step of the way in this complicated case. He understood my lost wages, and understood the strain on my family (he’s a father too). He made sure the judge understood it, too. By the the time he concluded his eloquent opening argument, the defendants quickly settled. I remain extremely grateful to Mr. Giordano."  -Lauren

Leave a Review