Intro and Ch 1: Footnotes

Produced by James Lantz and Bo Moore: 

This documentary is produced by both James Lantz and Bo Moore. James Lantz is the director, writer and editor; Bo Moore is the subject. Both Lantz and Moore raised the necessary funds for the film. Moore lent the initial funds to the production (paid back Spring 2012); Lantz lent funds to the film throughout its production. Both Lantz and Moore have potential compensation through profit-sharing. Contractually, as the film’s main subject, Moore has no ownership in the film, nor creative or editorial control.

“Wettest year on record”:

“From devastating flooding to record breaking snows, 2011 was a year of particularly active and tragic weather across Vermont and northern New York. At Burlington International Airport, it was the wettest year on record with 50.92" of precipitation.” National Weather Service, weather.gov, last accessed June 1, 2021

“Email from … Monster”:

Associated Press, October 12, 2009, “Monster threatens Vermonster beer brewer, “Forget David and Goliath. This fight’s between Matt and Monster. The maker of Monster energy drinks has taken aim at a Vermont brewery that sells a beer called ‘The Vermonster,’ ordering it to stop selling, advertising and promoting the craft brew because it could confuse consumers. The energy drink-maker, Hansen Beverage Co., wants tiny Rock Art Brewery to stop using the name ‘Vermonster’ on their barley brew and to compensate it for its attorney’s fees,” 

Nadeau Trademark Application:

United States Patent and Trademark Office (USPTO) www.USPTO.gov, application serial number 77765863, filing date: 06.23.2009

Video of Matt Nadeau, “Matt and the Monster”:

Green River Pictures, GRPNY, YouTube, “Matt and The Monster” October 14, 2009

“Internet went wild”:

National Public Radio, Charlotte Albright, “Monster of a Trademark Dispute Settled,” 10.23.2009

“Vermonster fan video”:

CopperCanyonBrewer, YouTube.com, 10.16.2009, “Monster Energy, picking on one of us, you’re gonna hear about it. … Beer, meet Monster Energy.”

“Shaming Trademark Bullies”:

Leah Chan Grinvald, “Shaming Trademark Bullies,” Wisconsin Law Review, Vol. 2011, November 3, 2011.

Leahy legislation:

Senator Patrick Leahy, Press Release, 01.26.2010, “Leahy to Introduce Bill to Ease Burdens on Trademark Owners — Morrisville Microbrewery Prompts Provision to Study Trademark Misuse by Big Businesses.” 

Note legislation: S. 2968 Trademark Technical and Conforming Amendment Act of 2010, Pub. L. No. 111-146 

International Trademark Association:

www.INTA.org, accessed October 13, 2015. “INTA members collectively contribute almost $12 trillion to global GDP annually. For comparison the 2013 GDP of the top three markets was 9.2 trillion (China), 17.9 trillion (Europe), and 16.7 trillion (U.S.).”

“Denied trademark bullying”:

International Trademark Association (INTA), Alan Drewsen, letter to David Kappos, US Dept of Commerce, 01.04.2011, “Allegations of ‘bullying’ in trademark disputes imply that some mark owners are, by virtue of size, free to limit the rights of others, which is not correct.”

“Wringing its hands”:

Anne Gundelfinger, former President of the International Trademark Association (INTA), Paradigm Shift: IP Backlash, Now It’s Political, Panel discussion at 2012 INTA Annual Meeting attended by filmmaker James Lantz, Washington, DC, “There’s also the rising sort of concern around trademark bullying which again, gets heavily debated. The fact is though, that there is some of it. It might be a tiny percentage of all the enforcement that occurs out there, but there’s a lot of enforcement. So 1% of a whole boatload is still a pretty significant amount of activity.”

“Something’s not right here”:

An unnamed source with knowledge of Senator Leahy’s musings on this topic, said that when hearing of the Eat More Kale / Eat Mor Chikin trademark dispute, Senator Leahy replied, “Something’s not right here.”

“Grow his business”:

Bo Muller-Moore, speech at Toxics Actions Center, Vermont Activism Celebration, Montpelier, Vermont, June 9. 2014. “I was ready to grow. I was ready to take advantage of the creative economy, and take advantage of the developing internet sales, and internet business.” 

See also, Bo Muller-Moore, interview on WABE radio, interviewer Denis O’Hayer, 11.29.2011 “If my business is going to grow at all, and if I’m going to protect my designs, I have to have this trademark.”

Bo Moore trademark application:

USPTO.gov, Eat More Kale, Trademark Application System, “New Application” August 31, 2011

“Resistance culture”:

Michael Townsend, “Green protection, resistance culture are VT Brands,” Burlington Free Press, August 10, 2014.

“Over a hundred thousand people”:

Informal estimate based on the number of people who purchased Eat More Kale T-shirts in four years, made donations to the Team Kale legal fund, signed petitions, and physically assisted Bo Moore (packaging shirts, walking in parades, etc).

T-shirts as hobby:

Bo Moore, first on-camera interview with James Lantz, January 17, 2012. “I make my living as a foster parent” (note: during the time of his public drama with Chick-fil-A, Bo worked as a full-time foster parent.)

See also, Dan D’Ambrosio, Burlington Free Press, Eat More Kale Trademark Flap More Complex than Simple Slogan.” “It’s the foster parenting gig that pays the bills.”

“Cited a number of reasons for trademarking Eat More Kale”:

— 1. Selling/licensing: Dan D’Ambrosio, Burlington Free Press, “Eat More Kale trademark flap more complex than simple slogan” Nov 24, 2011 “He said he wants the national trademark so he can sell his business some day if it grows large enough to interest a buyer, or so he can license his "Eat More Kale" T-shirts to Whole Foods or Trader Joe's, should either show an interest. … It's not unheard of that this could some day be something much bigger than it is," Muller-Moore said. "There's not much in my life that shows much potential for profit. It would be neat to solidly say I'll have the money for my kids to go to college. Our family hasn't taken a vacation in three years. That would be pretty neat, and I've got something that shows some real potential."

— 2. Whole Foods: In January 2011—eight months before Bo applied for a Federal Trademark and subsequently received his cease-and-desist letter from Chick- fil-A—he posted a picture of the Whole Foods ‘Better Bag’ on Eat More Kale’s Facebook page. He wanted to know what his followers thought about it. Within minutes, they began telling him:

Bo: “Eat More Kale on Whole Foods bags. What do you think?”

MPC: “Whoa Bo, that’s crazy. You should sue.”

Bo: “Do you think they needed to ask my clearance? Do you think they should have? I’m not quite sure. They can’t print Just Do It or Life Is Good. ....... HMMMMMMMMM?????”

MPC: “If you have a trademark, then you have a chance.”

MT: “Talk to a lawyer.” 

Thirteen minutes later Bo: “Just set up a meeting with a lawyer.”

See also: Eat More Kale Facebook page, Bo Muller-Moore, January 6, 2011 “Eat More Kale on Whole Foods bags. What do you think?”

— 3. Copycats: in numerous interviews Bo cited other T-shirt makers who were printing the words, “Eat More Kale” on T-shirts as a reason for applying for a trademark Eat More Kale. Bo considered these competitors as “copycats” and often sent takedown notices and cease and desist letters (re: Daniel Richardson, Bo’s Vermont lawyer).

However, a few trademark scholars we interviewed thought that slogans (such as “Eat More Kale”) were not trademarks and to register them as such, encroached on Free Speech issues. In an interview at Georgetown University, Trademark Scholar Rebecca Tushnet said of Eat More Kale, “I don’t think you should have a trademark on Eat More Kale — especially on the front of a T-shirt. That’s a message; that’s not a trademark.”

— 4. Life Is Good: on November 16, 2021 at a Q&A following the Premiere of “Vermont and the Bright Green Nothing” in Burlington VT, Bo cited yet another reason why he applied for a trademark for Eat More Kale: emulating the brothers who created the ‘Life Is Good’ brand. (In numerous interviews and Facebook posts, Bo spoke about his admiration for the ‘Life Is Good’ brand. Bo felt that his phrase — ‘Eat More Kale’ — deserved the same legal protection of a registered trademark as ‘Life Is Good.’)

“His three word phrase”:

Bo Moore, interview with James Lantz in front of the Madison Building at the United States Patent and Trademark Office, Alexandria Virginia, April 10, 2014:

JL: “So you get your trademark and you’re up and running—a farmer out west starts printing Eat More Kale on his boxes of kale. Do you have a problem with that?”

Bo: “I do.”

JL: “Tell me why.”

Bo: “Because it’s potentially confusing.”

JL: “He’s selling kale, though, and you’re selling T-shirts?”

Bo: “It’s potentially confusing. And isn’t that the argument that folks use when they have a potential trademark. They don’t want their potential customers confused. And I’m gonna argue, and I’ll stand behind it—if a business chooses to use the phrase Eat More Kale there is a chance—a real chance—that can be confused with the business and the products I’ve built over a 15 year period.... If they choose to use the phrase Eat More Kale [Bo shrugs] forgive me, you know what? I’m a junkyard bulldog. I’m gonna protect what’s mine.”

JL: “And Eat More Kale is yours?”

Bo: “Eat More Kale is mine.”

“About 400,000 new applications”:

USPTO.gov, USPTO Data Visualization Center, 2011, applications Year-to-date: 398,667

Trademark refusal Forbes Magazine:

Jess Collen, Forbes, August 24, 2019, “A very substantial percentage of trademark applications are refused in the first examination.” Also, “A “refusal” by the Trademark Office is more common than not, even for marks which are eventually granted registration.”

Bo Moore Takedown Notice:

Bo Moore, December 1, 2011, Email sent to Zazzle Customer Support:

“They are selling Eat More Kale shirts! Please shut them down, they are clearly infringing upon my common law trademark. Thank you for your timely action regarding this matter. He's impersonating me. Google EAT MORE KALE and you will FIND ME!!!!! I’VE worked really fucking hard for 11 years on my brand and logo. Don't let this guy sell the design on T-SHIRTS, HOODIES or STICKERS. That’s my thing and has been for years. I've given over 60,000 free Eat More Kale stickers away per year to build my bizness. Do not host this thief!!!!!!! It's apples to apples. You've shut other Eat More Kale copy cats down before. Do it again. I've worked too hard for this bozo to steal any of my thunder.”

Prior cease and desist letter in 2006:

Lisa Pearson, Kilpatrick Stockton LLP, November 10, 2006, re: Infringement of Chick-fil-A’s intellectual Property, “This matter could be a public relations disaster for Chick-fil-A.”

“A throwdown”:

Kenneth L. Port, follow-up in-person interview with James Lantz, Bar Harbor, Maine, June 8, 2015.

Chick-fil-A statement regarding Bo Moore:

WABE 1st interview with Bo Moore: “Chick-fil-A said it had been willing to co-exist with Bo Muller-moore’s T-shirts until he made that application [at the USPTO] for trademark protection, this summer. In the words of the statement, “because of this new development, we are required to protect Eat Mor Chikin, our own brand and trademark.”

“Picked a fight”:

Wilson Ring, Associated Press, December 12, 2014, “A folk artist who became a folk hero to some after picking a fight with fast-food giant Chick-fil-A over use of the phrase “eat more kale” — similar to their trademarked “eat mor chikin” — has won his legal battle.”

“Accidental Activist”:

Bo Moore, April 7, 2012, email to James Lantz, “Have changed course on my TED. Calling it The Accidental Activist.”

“Completely accidental” Bo Moore, Eat More Kale Facebook post, December 19, 2013, “Chick-fil-A told me to Cease and Desist. They forced me to become an ‘Accidental Activist’ ”