Ch 8: Footnotes

“Stronger party”:

Professor Rebecca Tushnet, on camera interview by James Lantz, Georgetown School of Law, June 12, 2012, “It’s part of a phenomenon related to the incredible costs of litigation in the U.S., generally — that is, it doesn’t pay to be small.” Also note: “It’s really about inequality. That we have such a vast disparity in the resources of the big to the smallest. That the biggest can afford to do pretty much what they want. And the law is often what they say it is if only because the smallest can’t afford to fight back.”

See also: Joseph Stiglitz, “The Price of Inequality,” 2012, Norton Press, page 100, “We have designed a legal system that is an arms race: the two protagonists work hard to out-lawyer each other, which is to say outspend each other, since good and clever lawyers are expensive. The outcome is often determined less by the merits of the case or issue than by the depth of the pockets.”

“Will settle”:

Bill McGeveren, “Rethinking Trademark Fair Use,” Iowa Law Review Vol. 94, 2008. “An artist or a small business has little capacity to resist when facing possible suit from a litigious trademark holder, unpredictable law, and big legal bills for a long fight.”

See also: Reiko Aoki and Jin-Li Hu,”Time Factors of Patent Litigation and Licensing,” Journal of Institutional and Theoretical Economics, Vol. 159, No.2, June 2003. 

Note: While the Aoki and Hu economic study regarding time in litigation was done primarily for intellectual property infringement cases involving patents, it seems fair to extend their findings to trademarks given the excessive litigation times we’ve observed in many of the cases we’re following. See also... David Bollier, Brand Name Bullies: The Quest to Own and Control Culture, Wiley, 2005. “Typically, the inequality of economic power between a corporation and a parodists tends to determine who prevails in trademark litigation lawsuits.” 

Please note: this quote is specific to parodists and not small businesses, but I think the comparison is fair.

“Million dollars”:

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.

“12 years”: 

“Small NH Coffee Producer Prevails Over Starbucks,” The Boston Globe, November 18, 2013.

“Legal action against Chick-fil-A”: 

Such as seeking a declaratory judgment, or filing at the USPTO to cancel Chick-fil-A’s trademarked slogan, “Eat Mor Chikin”.

Note: The Report to Congress prompted by Senator Leahy’s study identifies three possible responses a recipient of a cease and desist letter may take:

From the United States Commerce Department’s Report to Congress, “Trademark Litigation Tactics” April 2011, re: Possible responses to a ‘cease and desist’ letter: 3. “The alleged infringer denies the allegations of infringement and/or asserts various legal defenses justifying its ability to use its mark, files a declaratory judgment action, or offers a compromise solution for going forward.”

“USPTO itself”:

Steve Baird, DuetsBlog, September 9, 2014, “So my plan was to write today about how the USPTO has laid a real egg that it continues to sit on — taking no action at all for an entire year, making me want to raise this question again (albeit in a different light): Is the USPTO acting like a (surrogate) trademark bully?”

“Year or less”:

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

“Google and Apple”:

Source: United States Patent and Trademark Office, Trademark Search, www.USPTO.gov

“Lamenting the time drag”:

—Bo Moore, Eat More Kale Facebook page, May 15, 2012, “My battle to keep my micro-business is a long one. Chick Fil A has deep pockets and all the time in the world.”

—Bo Moore, Eat More Kale Facebook page, November 14, 2012, “Here on the 1st Anniversary of [Chick-fil-A] attempting to get me to CEASE AND DESIST. We could get some moment again and get them off my back. Can you believe this expensive battle continues?”

—Bo Moore, Press Release, “Vermont T-shirt Artist Bo Muller-Moore Loses Round #1 in Patent [sic] Battle vs Chick-fil-A: Vows to Keep Fighting” “I never dreamed it would take the reviewing attorney at the USPTO over a year and a half to make a ruling on my case”

—Bo Moore, Eat More Kale Facebook page, Sept 3, 2013, “People presume that the Eat Mor Chikin vs. EAT MORE KALE case is long over cause it was/is so ridiculous. Teams of Lawyers are still battling it out in the US Trade Mark Office.   Here is a short video of my Daughters response to Chick Fil A's letter telling me to never make another Eat More Kale t-shirt and to shut my website down. I DID NOT SET HER UP OR ASK HER!!! She insisted that she wanted to make a video that "the owners of that chikin' place would see". We are approaching the 2 yr. mark of this Trade Mark battle.”

—Bo Moore, Eat More Kale website, www.eatmorekale.com, accessed, October 25, 2013, “Never thought I’d find myself in such a David vs Goliath situation. The trademark battle [w CFA] is over two years old but … No, I WON’T BACK DOWN.”

—Bo Moore, Eat More Kale Facebook page, January 25, 2014 (repost) “2.5 years in the battle with the billionaires.”

—Bo Moore, Eat More Kale Facebook page, November 20, 2014, T-shirt guy battles Chick-fil-A on CNN! … This battle has been going on for 3 yrs now!!!!

—Bo Moore, Eat More Kale Facebook page, December 4, 2013, “Many think the story is over....yet it drags on.”

—Bo Moore, Eat More Kale Facebook page, March 10, 2014, “Chick-fil-A vs Eat More Kale legal fund … donate money and get Eat More Kale merch and prizes. my case has been at the USPTO for years now. it gets expensive, dig?”

“Take as long as he wants”: 

Andrew Lawrence, USPTO email to Paul Fucito, April 23, 2013, obtained by FOIA, “though represented by an attorney [Bo, the] applicant himself, has called and emailed me.”

See also, Bo confirmed the above communication in an email to James Lantz, responding to questions about his personal contacts with Andrew Lawrence at the USPTO while Bo’s pending application for Eat More Kale was still active. On January 18, 2017, Bo wrote that he had contacted Mr. Lawrence, “sending him a "sassy" email about how many folks were watching the case and that he could take as long as he wants 'cause there would be a spot light on him.”

“Timing of progress”:

Nathaniel A. Wickliffe, University of New Hampshire, School of Law, letter to Bo Moore (cc: Daniel Richardson), re: Application Status, Eat More Kale, March 31, 2014.

“Gaming”:

The word, “gaming” refers to Bo’s own quote, made in the 2018 interview, “to make the fucking game last longer”

See also, Wikipedia (citing Lumpkin, Stoll and Beller, 1994:92) Gamesmanship:

“Gamesmanship is the use of dubious (although not technically illegal) methods to win or gain a serious advantage in a game or sport. It has been described as "Pushing the rules to the limit without getting caught, using whatever dubious methods possible to achieve the desired end".

“Unusual communications”:

Note, previous communications cited in this documentary regarding the Eat More Kale trademark application originating at the USPTO from Commissioner Deborah Cohn “Keep me in the loop,” and Managing Attorney Andrew Lawrence to “make certain it doesn’t move.” 

See also, previous communications cited in this documentary from Bo’s UNH attorney, re: “timing of progress” as well as Bo’s previously noted communications with the Managing Attorney at the USPTO to take his time regarding Bo’s trademark application.