Wednesday, May 2, 2012

David, Goliath, and King Kong

I have written about the battle being waged by Chick-fil-A against a T-shirt maker in Vermont named Bo who sells T-shirts that say "Eat More Kale." CFA is afraid that Bo's T-shirts are going to detract from their trademarked slogan, "Eat Mor Chickin.'" (At least Bo can spell.) This is a classic David and Goliath story, and Bo-David is not backing down. He raised enough money on to fund a documentary about his struggle against CFA and has done a brilliant job of mounting a grassroots campaign through social media.

But the Feds have already indicated they are likely to side with CFA in their "cease and desist" order against Bo. CFA has already shut down the efforts of 40+ other entrepreneurs and businesses who tried to use "Eat more . . . ." in their advertising—and they're likely to win against Bo, given the way things work.

But a new player has just entered the fray: King Kong, aka Mars, Incorporated—the $30 billion dollar (revenue, 2010) maker of M&M's and most of America's favorite chocolate bars and other snacks. (Mars also own Seeds of Change, one of the oldest and best sellers of organic seeds and veggie food items.) Mars just came out with the ad above—"Eat more broccoli"—encouraging their customers to include lots of healthy foods in their diet along with their M&M's. Kudos for that.

Now it gets interesting. Chick-fil-A is a $5 billion revenue company that doesn't think twice about pushing T-shirt makers and other small businesses around—companies that don't have the resources to fight them in court. But is Chick-fil-A going to try the same stunt with a company six times its size? I can't wait to see!

Mars is the fifth largest PRIVATELY HELD company in America. They have no stockholders to tell them what to do. They are filthy rich and can do whatever they want—to include telling Chick-fil-A to back off if they hear a trademark chirp out of them in the form of a "cease and desist" letter.

Here's what I wonder: The Mars ad has just come out. This has to be more than coincidental. Because Bo's "Eat More Kale" campaign has garnered national attention, there's no way the folks at Mars created their "Eat More Broccoli" ad in a media vacuum. I relish the possibility that the Mars folks created their ad just to tweak Chick-fil-A; to see how tough the chicken-sellers are when they come up against somebody bigger than Bo.

I may be wrong. It could be a coincidence. But the world is watching—okay, I'm watching—to see what Chick-fil-A says to Mars, Incorporated—if anything. If CFA is telling Bo he can't say "Eat More Kale," then they should tell Mars they can't say "Eat More Broccoli." Better—CFA should tend to its chicken and leave the kale and broccoli to Bo and Mars and whoever else.


  1. "The world is watching"...
    Thanks for the update. I look forward to future updates. I wonder what motive Mars would have for intentionally choosing a phrase "owned" by ChikFilA. They are not really in the same market are they? Whether intentional or not I wonder what would happen to all the past judgments if Mars is able to get a ruling in their favor? This is property rights gone mad!

  2. I am a big Bo fan and financially supported the making of his documentary on kickstarter. But... I'm thinking Bo's problems might be because he filed for trademark protection for "Eat More Kale." This might be what tipped off CFA and prompted them to send another cease and desist. They do seem to have "bullied" other small businesses who have tried to use "Eat more...," and I wonder if the the other small fries filed for protection. I can't really tell from the photo, but has Mars put the little "tm" by the headline? And I'm thinking that you don't even have to have filed for protection to legally use the "tm." I think that lets folks know that you have the intent or are in the process of filing for trademark protection and for registration of the trademark, which would protect the artwork too. As a graphic designer, I'm very interested to see how this turns out. I imagine Bo will lose. But I am very happy to hear that he is very busy printing "Eat More Kale" shirts and that his business might prosper BECAUSE of this mess. I think he should make "Mor 'aint More" shirts.

    1. I likewise supported the movie and also agree that Bo will probably lose. CFA has the law on its side, unfortunately. Trademarking words seems akin to trademarking genes -- fine for CFA to mark "Eat Mor Chickin'" -- but not "eat" and "more" when used in other contexts. There is no TM or ® after "Eat more broccoli", but there is some fine print in the bottom right corner of the Mars ad. I enlarged the pic but it's too blurry, and I haven't seen the actual Atlantic magazine ad where it would be possible to read it. Hopefully, Bo's actions will draw some attention to the whole confusing area of people trademarking words instead of a complete phrase. All the 40+ folks CFA has threatened should be allowed to use their own "Eat More . . . " phrase as long as the third word isn't "Chickin'".

      I like Mor ain't More. I would also like an "Eat Morganic" T-shirt to promote organic food.

      Thanks for your input.

  3. Excellent article and I am also with Mr. Bo all the way

  4. Love Morganic!!!

  5. CFA's slogan is "Eat Mor Chikin", not chickin, which makes it even worse. I don't see how they can have claims on the words when people actually spell them correctly! It would be one thing if Bo said "Eat Mor Kal", or something equally ridiculous as "chikin", and used the same font as them; I could maybe, possibly, in some alternate universe see how that might be deemed as 'confusing'. I don't see how someone could possibly get kale and chicken confused. CFA needs to get off their high horse and stop being douchebags.

    1. Yeah aren't they supposed to turn the other cheek?

  6. The reason CFA went after him was that he applied for trademark protection. Trademark laws COMPEL companies to defend their trademarks against similar applications, or they could lose the protection on their own trademark. Bo had asked CFA to leave him alone a few years prior, and they said "okay" and backed off. It wasn't until he APPLIED FOR TRADEMARK PROTECTION that they had to defend the their trademark. They were going to let him continue to sell his stuff if hadn't applied for it. I know the difference seems small, but in the world of trademarks, it is everything.

    More than likely, Mars isn't going to try to apply for protection on this new ad campaign. Thus, CFA will leave them alone. What am I missing?

    1. That's a very helpful distinction -- thanks for point it out!

      I still think Bo's application will help raise (but probably not correct or reverse) what seems to be a too-strict trademark policy. I'm fine with CFA being able to trademark "Eat mor chikin" -- chikin being the operative word. I don't think they should be able to keep others from using the words "Eat more (whatever)". I doubt if Bo's case will cause the Feds to re-do trademark policy, but at least it points out the trademark policy -- far too encompassing, in my view.

      Thanks for raising this point.

    2. Trade Mark law does _not_ COMPEL ridiculousness.
      That comes from greedy, dishonest (double redundant) lawYERS!!!

      What are you missing... I don't know. It'd have to be researched. Perhaps, in fact, Mars is a competitor with Chik Full of ehhh... Perhaps this is a chance them to bomp 'em on their heads on general business "principles". (It's well deserved...) :)

  7. How is it that a phrase is trademarked? I say "be honest". Do I now own the phrase or do I just have to jump through piles of legal BS and pay people $$$$$$$ to own the phrase? What if I spelled it Bee Hawnest? Would I own it and why would selling such a stupid phrase or anything that resembled it be worth anything. Nobody should be able to sue like the CFA do! When will our legal system have a little common eh?

  8. Help meeee please, Chick-fil-A!!!! I am soooo confused by the Eat more broccoli adverts being run by Mars Corp. I can't tell the difference between broccoli and tasty industrial chicken products! Can you please sue the Mars Corp for sowing such confusion in my mind? Please?
    Also, could you please help CFAs customers "git mor edukation" cause I feel my grasp of the English language is slipping away!

  9. It ain't the LAW.... It's the lawYERS!!!

    TRADE MARK applies to a TRADE, strictly, in the statues.
    Bo and Chik Full of ehhhh.... are not engaged in the same TRADE (i.e. Business)... so Bo IS NOT infringing in anyway whatsoever, simply given that aspect... He's further not infringing because Chik Full of ehhhh can Trade Mark a Logo and a Slogan. But that does not let them claim all slogans that use SOME of the same words (and sometimes even ALL of the same words) (unless there is the possibility of confusion which interferes w/ Chik Full of ehhh's business WITHIN their TRADE ... which does not exist in this case).... By Spelling More as "MOR" they have no room to complain of any one using the word "More".
    Only a lawYER could make an argument out of this! (Damn lawyers....)

    Would Chik Full of ehhh sue me over "Eat Moore -- Demi that is."
    This is completely analogous.

    All my life my Mom said "You need to Eat More of your Vegetables"... is Chik Full of ehhh gonna come and sue my Mom?!?!? They... errr... their lawyers are... well... lawyers. [I need not use any stronger word than lawyer because that word itself is stronger than ass-wipes, ass-hats, and even ass-holes... Lawyers are what has screwed-up this county's Economy... if you want to get right down to the Brass Tacks!!!! They can all go Fry!!!!]

    As I said... it's not the LAW. The LAW does not Spell Out these absurdities that Chik Full of ehhh is claiming... it only leaves room for the lawYERS to play their little-boy, school-yard bully games.

    Shakespeare was right!!!

  10. This case reminds me of Walmart's attempt to trademark the smiley face. They lost the case because it was not distinct enough and had been used many years before Walmart took it.
    I guess we will see if the US Justice system runs on common sense or by corporations....

  11. I recently spent an afternoon at the Montpelier High School in which I first discovered this ridiculous story. What makes it hard for me to put my head around is the context of healthy vs disgusting fast food and corporate greed. If it sheds any light, the report is that the CFA lawyers stated that Kale really means marijuana. Some sort of health food code for drugs. Talk about continued cultural bias. They are so out of it. But unfortunately any press good or bad is good for business. They'll make record profits from this story alone.