March 2015

Hope you’re seeing signs of Spring where you are — a few robins and hints that the sap should be running soon are welcome sights here in Vermont after some bitterly cold days that dipped as low as 20 degrees below zero.

Meanwhile, work on our documentary film continues. We’re not only researching, editing and writing narration, but recently we interviewed a New York artist who was being legally pursued over a charge of trademark infringement by a multi-national food corporation. And of course, we continue to follow Bo’s trademark story which is not quite over, yet.

Bo’s trademark application has been allowed to advance at the United States Patent and Trademark Office (USPTO) with no opposition from Chick-fil-A. However, he and his lawyers must clear another legal hurdle before ‘Eat More Kale’ is granted official trademark registration by the USPTO. As of the writing of this post, the government has granted Bo a ‘Notice of Allowance’ for Eat More Kale. Official trademark registration should follow within six months of the ‘Notice of Allowance,’ which Bo and his lawyers received in December.

However, as we’ve seen many times since beginning production on our documentary film, this story continues to surprise us. And since what precipitated Chick-fil-A’s cease and desist letter in the first place — Bo’s quest for an ‘Eat More Kale’ registered trademark — is still in the process of becoming official, it’s our job to follow this story to a decisive conclusion, and to make a good movie.

In the meantime, keep checking back for more news on the production of our documentary film!

December 2014

It's official -- on Friday December 12th, 2014, on the steps of the Vermont Statehouse in Montpelier along with Vermont Governor Peter Shumlin, Bo Muller-Moore held a press conference and made a big announcement concerning his efforts to trademark 'Eat More Kale.'

Bo's opening statement at the press conference:

"I'm so glad to stand before you with some good news! For 38 months I've been in a legal wrestling match with the fast food giant, Chick-fil-A, and the U.S. trademark office. Well I'm proud to announce that as of December 9th I've been granted a trademark for my design for Eat More Kale. And as important as that trademark is, I've called Chick-fil-A's bluff on their cease and desist demands. I am not ceasing and desisting -- I am thriving thanks to people like you and thanks to Vermont and people from beyond."

As you can imagine, Bo was happy to be making his announcement surrounded by friends, family and supporters. Below is a link to an update to our Kickstarter backers with photos and more information about the production of our film.

November 2014

A quick update to let you know that we're about half-way through the USPTO's 30 day publication for opposition period for Bo's 'Eat More Kale' trademark -- by November 14th, we'll know for certain if Bo Muller-Moore has prevailed over Chick-fil-A's ex parte letter of protest against 'Eat More Kale' -- or, if Chick-fil-A or some other business will file a legal notice of opposition against a potential 'Eat More Kale' trademark.


A little more than a month ago the USPTO finally allowed Bo's 'Eat More Kale' trademark application to advance to the next legal level for trademark protection, or 'Publication for Opposition' -- which, in layman's terms, is similar to the part in a wedding ceremony where the minister says, "Does anybody know why these two should not be married?" By allowing Bo's 'Eat More Kale' trademark application to be published for opposition, the USPTO is essentially saying, "We're thinking of granting Bo trademark right in the phrase, 'Eat More Kale' -- does anybody feel that they might be damaged if we do this?"

Nearly three years ago, Chick-fil-A told Bo to 'cease and forever desist' printing 'Eat More Kale', and filed a secret letter of protest with the USPTO essentially saying, 'Yes, we feel that we will be damaged by an 'Eat More Kale' trademark as it will cause consumer confusion over our own 'Eat Mor Chikin' trademark' -- 'Eat More Kale' was infringing on Chick-fil-A 'Eat Mor Chikin' slogan.

So Chick-fil-A, or any other party who feels they may be damaged by a potential 'Eat More Kale' trademark, have until November 14th to file a letter of opposition with the government (or an extension of the opposition period). At that time, we should know if the story we've been covering has finally come to an end and Bo has acquired his trademark free of opposition from Chick-fil-A -- or if another chapter is about to begin.


While we wait for, what we hope will be, the last chapter in our documentary -- a couple of weeks ago we took our camera to Washington DC and filmed the National Trademark Expo.

The National Trademark Expo has significance to our documentary because this is one of the ways the USPTO educates the public -- and, more specifically, children -- about trademarks.

But more germane to Bo's story, Mr. Andrew Lawrence, who is the reviewing attorney for Bo's 'Eat More Kale' trademark application at the USPTO, is one of two contacts for the National Trademark Expo; on the day we attended he appeared to be one of the main USPTO officials in charge of the expo.

The expo is focused mainly on educating children about trademarks: trading cards, coloring books and roving mascots filled the main atrium and lawn of USPTO Headquarters in Alexandria.

For photos and more coverage of the expo (and to see the 'Fun With 5-hour Energy) be sure to follow this link here:

September 2014

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.

September 2014

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.

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