Ch 3: Footnotes

“Holiday season”:

Eat More Kale Facebook page, Bo Moore, November 14, 2011 “This is a make it or break it time of year for a small time artist like me.”

“Make it rain”: 

Bo Moore, Eat More Kale Facebook page, November 4, 2011, “Time to start thinking about where you are going to spend your holiday $$$$. Spend it with me please. I could use some spending $$$$. Help me “make it rain.”

see also, Eat More Kale Facebook page, Bo Moore, November 14, 2011 “This is a make it or break it time of year for a small time artist like me.”

“Shut him down”: 

Eat More Kale Facebook page, Bo Moore, November 16, 2011, “Chick Fil A is a Southern Fast Food Chain. They claim that my t-shirt printing business. EatMoreKale is infringing on their business and profits. 5 yrs ago they attempted to shut my website down and they wanted me to send my entire inventory to them to be destroyed. I fought back and they backed off. NOW they are blocking my attempt to secure a fed. trademark. Any feedback? Have I confused you and kept you from spending your $ at ChickFilA? Have I caused you to forgo fried "chikin' sandwiches from the good ol boys?”

“Outrage came quickly”:

Eat More Kale Facebook page, various posts Bo Muller-Moore and fans, November 16, 2011.

“7 Petitions”: 

—Change.org (42,000 signatures): Chick-fil-A: Stop Bullying Small Business Owners The largest and by far most successful petition was at Change.org, which was started by Jeff Weinstein, the owner of an all-natural soup maker in Vermont called Two Guys in Vermont and an acquaintance of Bo’s. It stated, “A federal trademark would block other artists from copying his [Bo’s] design.” It went on to say, “This petition is against corporate bullying.”

Note: this change.org petition seems to have changed its title from the beginning: it seemed to have been listed on FB, earlier as: Tell Chick-fil-A’s management team: please quit blocking EatMoreKale.com’s trademark application (listed on FB Nov 20, 2011).

—Care2 (353 signatures): Demand Chick-fil-A Drop Its Opposition to Eat More Kale Trademark. In an article at this petition’s site, it stated that when the news broke that Chick-fil-A had sent Bo a cease and desist over the words ‘Eat More,’ “...many perplexed people bought a shirt as a way to express support for Bo and outrage at Chick-fil-A.I’ve got one myself.”

—MoveOn.org, (2884 signatures)

—Ipetitions (3 signatures)

—Sum Of Us (number of signatures not listed) Stop Bullying Eat More Kale

—Facebook page “PROTECT EAT MORE KALE” (at its peak nearly 5000 fans)

—Care2 (started by Carl W.) removed from Facebook and Care2 site: “Please Quit Blocking Eat More Kale’s trademark application - the petition site.” Unknown number of signers. Note: this is the second of two Care2 petitions.

Congressman Peter Welch 

Peter Welch letter, Dec. 23, 2011, to S. Truett Cathy, founder and CEO of Chick-fil-A: “It’s hard for me to believe that Bo’s Eat More Kale slogan could be a threat to the Chick-fil-A brand,” he wrote. “The slogan [Eat More Kale] is a light-hearted commentary on our food culture. It does not attempt to market a business, nor does it appear to have harmed your healthy profit margin.”

New York Times: 

Jess Bidwell, “Chicken Chain Says Stop but T-shirt Maker Balks,” New York Times, December 4, 2011.

“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.”

“State of the State”:

Bo Moore, Eat More Kale Facebook page, January 5, 2012, “Was mentioned in VT. Gov. Peter Shumlin's "STATE OF THE STATE" address today. (honored) Here's a bit of it. “Since taking office a year ago, I have visited countless businesses throughout the state, and met with small business owners, from Bo Muller-Moore who had a simple idea to put the phrase “Eat More Kale” on t-shirts and now works 14 hour days to fill orders from across the country” … I’m a lucky and busy dude. Chick-Fil-A wants me to "cease and desist" ??????”

“Continued making posts”: 

Bo Moore and fans, Eat More Kale Facebook page, various in November 2011.

“Contact Chick-fil-A”:

Bo Moore, Eat More Kale Facebook page, December 21, 2011, “If my website or t-shirts have confused you...contact Chick-Fil-A and tell them”

See also, Bo Moore, Eat More Kale Facebook page, December 28, 2011, “Chick-Fil-A has a special page on their website. You can tell them a story about your Chick-Fil-A experience or read others!”

“Trying to own three words”:

Mike Masnick, TechDirt, November 30, 2011, “Chick-fil-A Says ‘Eat More Kale’ Slogan Infringes on Its ‘Eat Mor Chikin’, “Now, it is worth noting that the artist, Bo Muller-Moore, may have brought this partially upon himself by applying for a trademark himself on the "eat more kale" slogan -- which is likely what prompted Chick-fil-A to send the letter opposing the trademark and challenging the phrase. This is what happens when we battle over who can try to lock up the English language.”

See also, A lawyer writing for Public Citizen said that if Bo were to get a registered trademark for Eat More Kale, “…it would sustain [Bo’s] livelihood by giving him a monopoly on a phrase that belongs in the public domain.”

Leahy legislation:

Senator Patrick Leahy, Press Release, “Leahy to Introduce Bill to Ease Burdens on Trademark Owners – Morrisville Microbrewery Prompts Provision to Study Trademark Misuse by Big Businesses,” January 26, 2010.

“USPTO officials”: 

USPTO official, CJ, email dated, December 14, 2011, “The New York Times piece actually mentions Senator Leahy’s legislation addressing tactics used by large corporations to protect their trademarks”

“Applications a year”:

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

Andrew Lawrence:

Andrew Lawrence, USPTO Managing Attorney, 2011 email obtained by FOIA, “If the applicant contacts you on this case tell it/him/her that the case was re-assigned. I assigned it to myself as there is no surer way to make certain it doesn’t move than to put it in my docket.”

“Chance to grow”:

Barry C. Lynn, Interviewed by James Lantz, November 23, 2012. See also Mr. Lynn’s book, “Cornered: The New Monopoly Capitalism and the Economics of Destruction”

“Million dollars or more”:

AIPLA 2015, Report of the Economic Survey,Trademark Infringement, Intellectual Property Insurance Services Corporation 2015, “Average intellectual property litigation costs” Trademark Infringement through trial from a low of $345,000 to a high of $2.1 million.

“Bo compelling”: 

—Bo Moore, Eat More Kale Facebook page, November 30, 2014, “Consider supporting … a dude from Vermont and a true Mom and Pop American Micro Biz that’s being kicked around by Chick-fil-A.”

—Bo Moore, Eat More Kale Facebook page, December 12, 2013, “Chick-fil-A says its customers can’t tell the different ‘tween Kale and Chikin. … Want a shirt that says, “Kale isn’t Chikin? I’ll print one for you.”

—Bo Moore, Eat More Kale Facebook page, May 13, 2014, “Chick-fil-A sells 600 “chickin” sandwiches per minute. They don’t want you to buy a shirt from eatmorekale.com. You can though and I hope you will.”

—Bo Moore, Eat More Kale Facebook page, May 27, 2013, “To those of you who wonder if I'm "still in business".....YES I AM.    Order a t-shirt from me in Defiance of Silly Corp Requests!!!    What do you think of the Billionaires in Atlanta that don't want me to print another "EAT MORE KALE "

—Bo Moore, Eat More Kale Facebook page, April 23, 2013, “Chick Fil A sells 600 "chikin" sandwiches per minute. I'm lucky and glad when I sell a handful of shirts all day. Can I print one for you this week?

—Bo Moore, Eat More Kale Facebook page, June 2, 2014, “Chick-fil-A sells 600 sandwiches per minute. I’d like to sell 600 T-shirts in a month. They’re telling me to ‘cease and desist’ cause I’m confusing their customers and affecting their profits. They don’t want you to shop with me. I hope you’ll defy them. When you shop with EatMoreKale.com you’re shopping with a true MOMnPOP.”

—Bo Moore, Eat More Kale Facebook page, November 30, 2014, “Consider supporting … a dude from Vermont and a true Mom and Pop American Micro Biz that’s being kicked around by Chick-fil-A.”

“University Study”:

Leah Chan Grinvald, Policing the Cease-and-Desist Letter, 2015, University of San Francisco Law Review 49 U.S.F. L. Rev. 411 

“…Professor William Gallagher's empirical study of the enforcement of intellectual property rights by attorneys offers some support. n30 His qualitative study of fifty-eight experienced intellectual property lawyers found that almost all conducted their dispute resolution by using cease-and-desist letters, which typically resulted in a privately negotiated settlement … Further, these participants admitted that where such letters are sent to small businesses or individuals, strategically it was often more effective to be "abusive."

“…it appears that the vast majority of disputes begin and end with the cease-and-desist letter, particularly where the letter is abusive.”

American Bar Association”:

National Law Review, November 4, 2015, Jason K Schmitz, IP Strategies, Vedder Price, “Cease-and-desist letters continue to be an extremely effective prelitigation strategy for achieving a brand owner's objectives without resorting to litigation.”

“Never once brought a trademark infringement case to trial”:

Leah Chan Grinvald, Policing the Cease and Desist Letter, University of San Francisco Law Review, page 3, “His qualitative study of fifty-eight experienced intellectual property lawyers found that almost all conducted their dispute resolution by using cease-and-desist letters, which typically resulted in a privately negotiated settlement. n31 In fact, only five of these seasoned attorneys had ever actually litigated more than three cases. n32 Additionally, more than one-third of the participants had never brought a trademark or copyright case to trial over the course of their careers. n33 Further, these participants admitted that where such letters are sent to small businesses or individuals, strategically it was often more effective to be "abusive." n34 One of the study's conclusions was that the study participants routinely enforced "weak" claims without any perceived ethical dilemma.”

“Their Cease and Desist letter”:

Arnall Golden Gregory, llp, letter to Daniel P. Richardson, Esq., re Infringement and Dilution of CFA Properties. “Chick-fil-A hereby demands that your client (1) immediately expressly abandon Application serial no. 85/412053 by filing an Express Abandonment of Application with the USPTO, and (2) cease and forever desist all plans to expand and current expansion of use of the Eat More Kale mark. Please also contact me to arrange for transfer of the eatmorekale.com domain name to Chick-fil-A,” October 4, 2011