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View Diary: "EAT MORE KALE" vs. "EAT MOR CHIKIN." A Vermont small businessman is bullied by a behemoth (101 comments)

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  •  Welcome to IP law. (5+ / 0-)

    This is how it works.  If you don't aggressively defend a trademark, you lose it.  Period.  This has happened repeatedly.  Aspirin?  Used to be a registered trademark of Bayer AG.  

    Copyrights don't have to be as aggressively defended, but trademarks specifically do.  If they don't take this to court they can lose their own trademark.  It's a pretty messed up section of IP law.  (Which given the state of IP law overall.... is really saying something.)

    •  Bullshit. (5+ / 0-)

      I mean, that may be how "it works," but because a system is designed by idiots for the use of idiots does not mean we should all play by the system. But that's not even your suggestion.

      Your suggestion is that if I were to market a grape soda called it "Purple Drink (TM)," that to defend that trademark I'll have to sue Welch's for selling a drink that actually is purple even though they call it grape juice. I'll have to sue the Minnesota Vikings should they happen to market anything about the Purple People Eaters. I'll get to take over purple.com -- after all, they're cybersquatting on my intellectual property.

      Chick Fil-A's suit does make for an interesting question, though. If they can prove that "Eat More Kale" is an infringing statement, doesn't it at that point become constitutionally-protected parody?

      "Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so." -Douglas Adams

      by Geiiga on Thu Nov 24, 2011 at 07:27:03 PM PST

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      •  Um, no. (2+ / 0-)
        Recommended by:
        raincrow, sb

        First off.... Welch's has prior art.  They'd come after you if anything.  Same holds true for the Vikings.

        Your feeling that this is stupid is irrelevant.  Hell I feel that most IP law in general is stupid.  This does not, in fact, change the nature of the law.  This really is how it's written.

        •  "Prior Art" is patent law. (4+ / 0-)
          Recommended by:
          Miggles, shenderson, G2geek, sb

          Trademarks have to be used in trade or business and they have to have a level of public recognition to be defended. If you have a registered trademark but nobody buys your product and nobody's heard of it, you don't have anything to defend.

          "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

          by Alice in Florida on Thu Nov 24, 2011 at 08:38:17 PM PST

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          •  And if you're the first one to use it.... (1+ / 0-)
            Recommended by:
            sb

            ....and someone else comes along and copies you, you're the one that gets the protection under the law.  You're also the one that's legally obligated to defend that trademark or you lose said protection.

            •  But if they don't copy you (0+ / 0-)

              and their product doesn't compete with yours, then all you're doing is wasting money on lawyer's fees (of course the lawyers are the ones who advise them on the need to "defend" against noninfringing uses, so of course they benefit.)

              "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

              by Alice in Florida on Fri Nov 25, 2011 at 11:35:13 AM PST

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            •  Actually, I believe that if you (0+ / 0-)

              are the first to use the trademark, but you aren't very successful and aren't noticed, and then someone else (unintentionally) does something similar and is very successful and people identify the trademark with his product, then he not you would have the superior claim, as I understand it (it's been quite a few years since I was involved in this...I did an internship with a federal judge back in the 1990s). It's not simple.

              But a trademark is not universal....just because you use a trademark doesn't mean you get to own the words in it for all purposes, especially if those words are common, generic words like "eat more..."

              In fact, something that closely resembles the trademark can be perfectly legit if it's parody....what that guy in Vermont should do is a T-shirt with a chicken holding a sign that says "Eat Mor Veggz"..

              "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

              by Alice in Florida on Fri Nov 25, 2011 at 11:45:30 AM PST

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      •  Actually you have it wrong--the more (4+ / 0-)
        Recommended by:
        G2geek, Philpm, sb, elmo

        established company is the presumed owner of the trademark, i.e. it's not enough to have a trademark registered, you have to use it and it has to be recognized....that's the sole factor that Chick-fil-A has in its favor. If there were an actual possibility of confusing the two products, the better-known company (usually the better funded one as well) wins. What Chick-fil-A lacks in this case is any remotely reasonable argument that people are going to confuse chicken (or "Chikn") with kale. The only thing the tee shirts have in common with Chick-fil-A's advertisements is the words "eat more" and somewhat sloppy lettering (and I don't think Chick-fil-A can claim ownership of sloppy lettering, unless it is written by cows).

        "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

        by Alice in Florida on Thu Nov 24, 2011 at 08:34:16 PM PST

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      •  Purple (1+ / 0-)
        Recommended by:
        sb

        or at least a specific shade of purple, IS a protected image, by Benson and Hedges in Europe. They have used purple in their advertising for a generation or more. To the extent that several ads were run using only the color, leaving out the name of the cigarette entirely, knowing that everyone would know they were talking about B&H.

        Obviously, this is a complex subject.

        •  Their advertising is far more subtle. (0+ / 0-)

          Can we assume their law is more nuanced? ;-)

          I remember those ads in the UK in the early 80s: a chameleon on purple silk. That was it. Nothing else. The color (and the style) of the the ad was the understood brand. Everybody knew what it was, but you needed context to have that knowledge.

    •  This isn't like "aspirin" (8+ / 0-)

      which was the trade name for a product, like "kleenex" (an example of a product that could suffer the fate of "aspirin" if they fail to defend it, since so many people use it as a generic term). The "Eat More Kale" people aren't calling kale "Chick-Fil-A"...they aren't even calling it "chicken (or is it Chikn?").

      Now if another purveyer of chicken products used their mispelling or some such thing, it would make sense for them to sue. But a trademark doesn't mean other people lose the right to use common English words. In fact, my late father worked for a company named Burlington which made textiles, who sued Burlington Coat Factory (a chain of stores that sell items made out of textiles) and they lost....because there are lots of cities named Burlington (Vermont has one, apropos of nothing) and therefore it was determined no one could claim exclusive use in trade. I would think the words "eat more..." being even more common, are that much less susceptible to being trademarked.

      "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

      by Alice in Florida on Thu Nov 24, 2011 at 08:24:20 PM PST

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      •  Doesn't matter. (2+ / 0-)
        Recommended by:
        raincrow, sb

        It's still covered under the same law.

        You defend it or you lose it.  That's how trademarks work.  This is black letter law here.

        •  that doesn't guarantee the outcome. (4+ / 0-)
          Recommended by:
          sb, Cassandra Waites, elmo, Tinfoil Hat

          It's amply demonstrated that "Eat More" is as generic as it gets in any food-related industry, in exactly the same manner as "Drive a..." is generic in the automobile industry.  (Thus "See the USA in your Chevrolet" and "Have you driven a Ford lately?": those pass but "Drive a Chevy" or "Drive a Ford" would fail.)

          So Chik-Sue-Me gets to defend something that's indefensible, and the judge finds for the Kale dude and awards him his costs.

          Couldn't happen to a nicer band of dominionist pricks.  

          "Minus one vote for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Thu Nov 24, 2011 at 11:28:53 PM PST

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        •  No it's not (3+ / 0-)
          Recommended by:
          sb, Cassandra Waites, elmo

          Trademark law defends specific expression, not generic expression. If Chik fil A has created a neologism (farfigneugen, for example) they could defend their use. "Eat more" is too generic to be protected. If the phrase was "Eat Mor Kal" they might have a case, based on the nature of the expression (misspelling) but it's not.

        •  But there has to be some similarity (0+ / 0-)

          between the two phrases or you'd have to oppose the granting of any trademark.

          Eat More Kale and Eat Mor Chickin are more dissimilar than similar.

          Is Chick Fil A to oppose any trademark application with the word "chicken" in it, too?

    •  Yes, but (4+ / 0-)
      Recommended by:
      sb, Cassandra Waites, Losty, badscience

      While you can lose rights to a SPECIFIC phrase or idea expression through common usage, you cannot keep trademark to a GENERIC expression under any circumstance.

      Aspirin, Kleenex, etc. are precise, single words that have no other meaning. Mickey mouse (the classic example of a vigorously protected trademark) is a specific expression of an idea.

      But Disney cannot forbid the sale of all "mouse" products, or even "Mickey" products, only those that conflict with their specific trademark of Mickey Mouse. "Mouse" alone and "Mickey" alone, generically, is not specific enough. They are generic expressions of a common idea.

      But ask any copyright or patent lawyer, these sorts of nuisance filings are a common way to force competitors to spend money defending a frivolous suit. Anyone who tries to copyright or patent almost anything has to fend them off. Lawyers are expert at demanding just enough money to make defending the suit more expensive than just paying them to go away.

      •  And a common way for lawyers (0+ / 0-)

        to generate fees for makework....the law is complex, clients don't understand it = opportunity to pick client's pocket.

        "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out." --I.F. Stone

        by Alice in Florida on Fri Nov 25, 2011 at 11:52:10 AM PST

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