BO'S TM APPLICATION ADVANCES + TRUETT CATHY DIES AT 93
We wanted to update you on two big pieces of news today: Bo's 'Eat More Kale' trademark application finally advances at the United States Patent and Trademark Office, and Truett Cathy, CEO of Chick-fil-A, dies at 93.
We just logged onto the USPTO website and saw that Bo's application's status had been updated to today's date, "September 8, 2014" and the application was noted: "Approved by the examining attorney for publication but has not yet published for opposition. Although rare, withdrawal of approval prior to publication may occur after final review. The opposition period begins on the date of publication."
We'll check in with our legal scholars to see what exactly this status update means, and what bearing the language in the update has on Bo's 'Eat More Kale' trademark application, but it appears that his potential trademark is now slated to be officially published by the USPTO which means it will be made public so that it can be scrutinized by other trademark rights holders and their attorneys for any potential official opposition. Remember that it was Chick-fil-A's cease and desist letter and their 'ex parte letter of opposition' to Bo's trademark application that started this whole drama, in the first place -- Chick-fil-A claimed that an 'Eat More Kale' trademark would be infringing on, and cause confusion with, their 'Eat Mor Chikin' slogan.
To be clear: Bo does not yet have a registered 'Eat More Kale' trademark -- his application still has a ways to go at the USPTO as other businesses such as Chick-fil-A, who have may have a vested interest in one or more of these words may legally oppose Bo and his Eat More Kale mark -- so we'll wait and see what happens next. Given that the examining attorney could have outright rejected Bo's 'Eat More Kale' application, this is good news for Bo and Team Kale.
We'd also like to extend our condolences to the Cathy Family on the death of Chick-fil-A founder and CEO Truett Cathy who, it was announced today September 8, 2014, died last night at the age of 93. Mr. Cathy's story is extraordinary: from being a child of the depression and selling Cokes door to door to help support his family, to his incredible success with Chick-fil-A which ultimately made him a fortune and one of the richest men in the world -- at last count, one of the 400 richest people in the country with a net worth of 6.7 billion dollars.
STILL WAITING + BO CONFRONTS KNOCK OFFS
Our film is still waiting on a definitive decision from the USPTO on Bo's case -- truth be told, we expected a decision from the trademark office quite a while ago. Some of the legal experts we've interviewed for our film are just as baffled as to the reason why it's taking so long for Bo's legal case to be decided at the USPTO. As we've mentioned in previous posts, the USPTO's decision on Bo's case is very important to our film -- it could be the ending of our story, or the decision could set into motion either A. a legal response from Bo and his lawyers and/or B. a legal response from Chick-fil-A and any other party who might oppose a potential 'Eat More Kale' trademark.
Also the (sometimes) interminably long and prohibitively expensive process of trademark litigation is an important part of our story -- many small businesses and artists acquiesce during the process because they can't afford to go on, or they just give up. Which is unfortunate. Because in trademark battles, the war of attrition usually goes to the larger, deeper pocketed entity which means that small businesses and artists almost always lose. However, our scholars have told us that if these cases actually get to court (which they seldom do) then the law is usually pretty fair and the size of the entity is not necessarily a factor in deciding the case.
Meanwhile, Bo continues to report what he refers to as 'knock offs' of his design to places like Ebay, Zazzle and other websites that sometimes host vendors who print t-shirts emblazoned with the words, 'Eat More Kale' -- as Bo has said in numerous interviews, this is the main reason he filed for federal trademark protection in the first place. Recently, Bo reported a 'knock-off' t-shirt to Ebay that a vendor had printed with the words 'Eat More Kale.' Ebay responded by taking the vendor's t-shirt down off of Ebay. According to the vendor, an Ebay spokesman said that Bo is the "verifiable rights owner" to Eat More Kale, and directed the vendor to the USPTO website where Bo's 'Eat More Kale' trademark application is on file.
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?"