BO GIVES ACCIDENTAL ACTIVIST SPEECH
Despite the lack of an ending anywhere in sight on Bo's case or for our film, work on our documentary continues -- we edit, research and write on Bo's case and this incredibly complex subject; we recently attended and filmed a speech Bo made at the Vermont Activism Celebration for the Toxics Action Center in Montpelier, VT about his role as an Accidental Activist (a special thank you to one of our producers, Max, who came up from New York City to be a part of Bo's speech). We also spent one afternoon interviewing a close friend of Bo's on how he perceived the pressure of running a small business and defending Eat More Kale was affecting Bo.
Meanwhile, we wait for a decision from the USPTO
There still (still!) hasn't been a government decision on whether Bo's Eat More Kale design is likely to cause confusion with Chick-fil-A's Eat Mor Chikin slogan, and whether his application for a trademark will be allowed to proceed at the United States Patent and Trademark Office (USPTO). After nearly 3 years since Bo first applied for a trademark and Chick-fil-A sent him a 'cease and desist' letter, and over 2 years since the USPTO's "non-final" rejection determined that Bo's Eat More Kale design was in fact likely to cause confusion with Chick-fil-A's Eat Mor Chikin slogan, and then 9 months waiting for the USPTO to respond to yet another legal response by Bo's lawyers -- the only way to describe the long wait for a final decision from the USPTO is this: It is absurd and a potential abuse of government power.
MEETING CANCELLED, STILL AWAITING DECISION FROM USPTO
So we returned from Washington DC with little to show for our trip to the United States Patent and Trademark Office --- as we stood in the atrium of the USPTO waiting for the arrival of Bo's legal team, we received an email from one of Bo's lawyers that the scheduled meeting with the USPTO had been cancelled. According to Bo, "We were told the reviewing attorney had called in sick." (Bo goes on to add, "If he truly is sick, I wish him a speedy recovery, as he has promised make a conference call to me and my lawyers next week.") On Facebook Bo added, "I would have thought someone from (the USPTO) would have come down to shake hands and explain ... but nope ... left alone in the lobby." A comment on the 'Eat More Kale' Facebook page said, "Do you think he would have called in sick if the CEO of Chic-Fil-a was going to meet with him? ... The game is rigged, Bo. Sorry to say."
Meanwhile, Bo continues to wait on a decision on his trademark application from the USPTO -- this round is going on month eight.
BO IS HEADED TO DC TO MEET WITH THE USPTO
We've finally (finally!) got some news -- Bo has been invited to attend a meeting that's happening late next week just outside of Washington DC at the United States Patent and Trademark Office between the USPTO's reviewing attorney, Mr. Andrew Lawrence, Managing Trademark Attorney at the USPTO, and his attorney of record, Ashlyn Lembree, Director of the Intellectual Property and Transaction Clinic, University of New Hampshire School of Law's Franklin Pierce Center for Intellectual Property.
We're grateful to Mr. Andrew Lawrence for allowing this to happen, as he's the person at the USPTO who is currently deciding Bo's trademark case, and the person who gave 'Eat More Kale' its non-final rejection to receive a trademark on the grounds that it would likely cause confusion with Chick-fil-A and their trademark, 'Eat Mor Chikin'. What will happen at the meeting, we don't know -- will this be an opportunity for the USPTO to set the record straight with Bo's attorneys? Will the USPTO shed light on the status of Bo's case? Will Bo's lawyers be able to ask Mr. Lawrence about Bo's case? One thing we know for certain is that Bo won't be saying anything at the meeting -- according to Bo, he's been told that he "...can attend, but he must remain quiet."
STILL WAITING ON THE USPTO
April 2, 2014
We're now nearing seven months since Bo's attorneys filed their latest response to the non-final rejection that the USPTO handed down in their contention that 'Eat More Kale' was likely to cause confusion with Chick-fil-A's 'Eat Mor Chikin' slogan. And all of us -- especially Bo and his family -- are anxiously awaiting the USPTO's official response.
If you go back to when Bo's attorney first applied to the USPTO for an 'Eat More Kale' trademark, it's been two and half years. And if you go back even further to 2006 and the very first time that Chick-fil-A demanded that Bo cease and desist, when they demanded that he send all of his t-shirts to Atlanta to be destroyed -- we're looking at a saga that's been going on for nearly nine years!
Production of our film continues -- we continue to edit, research, and write. We've been connecting with even more trademark experts and scholars, and unearthing more details on this incredibly complex issue. But since we don't know the ending, nor do we know the final arc of the story, our film is not done. We've also been trying out different ways to tell our documentary story. We've shot hundreds of hours of footage from all over the country, and we want our film to be interesting, accessible and relevant. So how do we do that in the best way we can, so that we reach the broadest audience possible? If you think about it, there are so many different ways to tell this story -- of late, we've been inspired by some recent hybrid documentaries such as 'The Stories We Tell' and the phenomenally powerful, 'The Act of Killing.' In the meantime, as soon as we hear anything on Bo's case, we'll post the news here.
WAITING ON THE USPTO
It was 14 degrees below zero here in Vermont a couple of days ago, so we moved our hard drives and editing equipment from our office in a renovated barn to a more stable climate to protect the film's footage against the possibility of a power outage; our office is heated and well-protected, but with over 200 hours and $120,000 worth of footage -- and the temperatures dropping to dangerous lows, we can't be too cautious. Meanwhile, we sent 30 minutes of edited footage to our 2000 Kickstarter backers where we got lots of great feedback and helpful tips. We also sent the edited footage to our friends at SevenDays where they did an update on our film that you can read here: http://www.7dvt.com/2013short-takes-film-hunt-defiant-dude-update
Meanwhile, Bo's trademark case is still pending at the USPTO (United States Patent and Trademark Office). Bo's attorneys filed their response to the Trademark office's rejection on September 17th of last year -- hopefully, Bo and his legal team will hear something soon.
BO'S LAWYERS FILE THEIR RESPONSE, AND OTHER NEWS
Fall is in the air here in Vermont and our film production crew is making plans to film a speech that Bo is preparing to make at an anti-GMO rally in Montpelier, VT, while we continue following up on a couple of other trademark bullying cases that we filmed in the previous 12 months (several of those cases have made their way to court, or have been settled). Meanwhile, Bo's attorneys have filed their official response to his rejection at the USPTO, and Bo gave an excellent commencement speech at Goddard Collage this summer that we were honored to film.
That's all for now --- we'll be sure to keep you posted as soon as the USPTO rules on Bo's case when, hopefully, we'll have a happy ending to our film!
WHEN WILL OUR FILM BE DONE, AND THEN SOME
It's a long hot summer here in Vermont but work on our film continues -- we've been busy editing, filming and connecting with other documentary filmmakers who are helping us with our film. Not a day goes by that our film isn't edited, shot or moved forward in some capacity.
PRODUCTION: Since our last update we've produced several shoots including filming at David Miskell's farm in Charlotte, VT -- David donates 5% of his kale sales to Bo's legal fund. We've also filmed a long interview with Bo where he had much to say about the status of his case, lawyers, t-shirts and the stresses of being David to Chick-fil-A's Goliath.
POST PRODUCTION: Some of our research has been finding some extraordinary trademark infringement cases from around the country that have bearing on Bo's case, and we've been spending time following up on leads and weaving those stories into our film. We've also been doing lots of editing -- with over 200 hours of footage and counting, culling down and crafting a story from our filming is an exhilarating job.
BO'S CASE: Bo is soldiering on and continuing to print Eat More Kale t-shirts -- however, as is the case for many small businesses and artists who are attacked by a large corporations over allegations of trademark infringement, the drawn out process has been taxing for Bo. However, that hasn't dampened his spirit to keep printing Eat More Kale t-shirts. As he said in his last interview: "I think every single time I print another Eat More Kale shirt and send it to another corner of the U.S. for someone to wear, that's an act of defiance. Chick-fil-A said don't do it, and I said _____you!"
WHEN WILL OUR FILM BE DONE? While we had hoped to be finished with our film by now, we're still very much in the middle of production. While our film has a great beginning and middle, it currently has no ending -- and to be quite honest, an ending is not in immediate sight. We're resolved to follow Bo and his story until there's some sort of resolution for him and his Eat More Kale design. And this is becoming part of our story, too -- that one of the great problems small businesses face when fighting a multi-billion dollar corporation is a war of attrition.
BO SUFFERS A LEGAL SETBACK
May 18, 2013
Some sad news here as, last week, Bo finally heard from the USPTO (the United States Patent and Trademark Office) on his trademark case and the government has preliminarily ruled against Bo and in favor of Chick-fil-A's letter of protest, saying that 'Eat More Kale' is likely to cause confusion with Chick-fil-A's 'Eat Mor Chickin' slogan. The decision from the USPTO isn't final as it gives Bo and his lawyer yet one more chance to file additional arguments in support of their case, but it is heartbreaking to read the reviewing attorney's opinion wherein he argues (in essence, for Chick-fil-A) that, in fact, kale and chicken are similar food products.
After learning the news, Bo also posted the following on his Facebook page: "Andrew Lawrence is the Senior Reviewing Attorney at the USPTO. You and I pay his salary to protect Consumers from Confusion. (Like when Copy Cat artist sell my exact design on t-shirts online). Is he protecting Consumers or the marketing department of Chick-fil-A? He states that I can't even register for a Trademark even though I've NOT CONFUSED A SINGLE CHICK-FIL-A CUSTOMER. He states that I MAY confuse someone in the FUTURE. He can be contacted for feedback. Andrew.Lawrence@uspto.gov. (571) 272-9342. I called him and ask him to allow me to proceed with the right to register my trademark. I was Polite. I hope you'll be polite as well. Is he fighting for consumers or billionaires? How many folks can we get to call or write?"
THE SLOW WHEELS OF GOVERNMENT
March 13, 2013
I wish we could bring you more news about Bo's case advancing through the halls of government, but those wheels move slowly and unfortunately nothing has changed on the legal status of Eat More Kale for about six months now. We've been reporting for months that Bo and his lawyer filed with the USPTO (United States Patent and Trademark Office) a response to their rejection of his trademark case --- the reviewing attorney at the USPTO ruled that Eat More Kale was, in fact, likely to cause confusion with Chick-fil-A's Eat Mor Chikin slogan and therefore they rejected Bo's appeal. This appears to be a rejection based, in part, on Chick-fil-A's 'ex parte' letter of protest that they filed with the USPTO. As of today, nearly six months have passed since Bo's lawyer filed their response and the USPTO has yet to file their 'official' ruling. Once they make that ruling, Bo will either be allowed to proceed with his trademark application (at which time he'll have to face Chick-fil-A's opposition) or he'll have to proceed to an appeals board at the USPTO.
Meanwhile, our film production moves on. We're beginning to do some editing now, culling down the 200 or so hours of film footage that we've amassed over the last twelve months, shot in twelve different states across the country -- and our footage is proving to be quite powerful! We're honored to have interviewed scores of experts and scholars from places like Stanford, American University and Notre Dame, as well as other small business folks fighting similar trademark battles; folks like Robert Linden in Minnesota who owns a company called THERMAL-WISE INSULATION and his trademark battle with QUESTAR, Scott Smith and his infringement fight with ENTREPRENEUR MAGAZINE, and Amy Brooks, a leukemia survivor who developed a soap for the sensitive skin of cancer patients called, BUBBLES BY BROOKS who is being challenged in court by the men's shirt company, BROOKS BROTHERS. While we're super excited about the interviews and footage we've collected so far, but we've still got a ways to go before we finish. In the meantime, we'll be sure to keep you posted!