• ‘Eat More Kale’ gets preliminary ‘no’
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     | April 23,2013
     
    Toby Talbot / AP Photo

    Bo Muller-Moore holds a stencil used to make shirts Monday in Montpelier. He built a T-shirt business around the phrase "Eat more kale" and is in a legal fight with the fast food giant Chick-fil-A to protect the saying.

    MONTPELIER — The Montpelier artist who built a T-shirt business around the term “Eat More Kale” said Monday the U.S. Trademark and Patent office has given him a “preliminary no” in his legal fight to protect the term that sparked a legal battle with the Chick-fil-A restaurant chain.

    But artist Bo Muller-Moore said he has six months to respond to the ruling.

    Muller-Moore said he had expected to learn more Monday about his ongoing fight to trademark the phrase, which also appears on round stickers that adorn many cars in Vermont.

    The fast food giant Chick-fil-A objected to his efforts in the fall of 2011 because the company said the words could be confused with its trademarked slogan “Eat Mor Chikin.”

    The company also requested that Muller-Moore stop printing his three words on T-shirts and stickers.

    The company has deep pockets for the fight. In 2010, Chick-fil-A reported more than $3.5 billion in gross sales. As of 2011, it had more than 1,300 stores in 39 states.

    Muller-Moore built his business from his artist studio in an old garage behind his slate-roofed Victorian home in Montpelier. He first traced the distinctive font used for the phrase — based on outlines of his own fingers — in 2000 after a farmer friend asked him to silkscreen a pair of shirts with the now-famous words.

    The legal battle for the phrase prompted Vermont Gov. Peter Shumlin to say in December 2011 the state would do all it could to help Muller-Moore in his battle with Chick-fil-A.

    Muller-Moore’s attorney Daniel Richardson, of Montpelier, said an official with the Trademark and Patent office thought the two phrases could be confused.

    Chick-fil-A did not respond Monday to an emailed request for comment.

    In a statement issued in late 2011, Chick-fil-A said it became aware of “Eat More Kale” T-shirts in 2006 and it had co-existed since, but that had to change after the Vermont company submitted the application to trademark its slogan.

    “We support the entrepreneurial spirit of small business,” said the 2011 statement issued by Chick-fil-A spokesman Don Perry. “Unfortunately, when protecting our trademark, the law does not allow us to differentiate between a large company or a small enterprise... we must legally protect and defend our “Eat Mor Chikin” trademarks in order to maintain rights to the slogan. It is not uncommon for us — or for any corporation to defend our trademark rights.”

    Muller-Moore says he needs the trademark to protect against knockoffs himself. No fewer than nine T-shirt makers, he said a couple of years ago, have already tried to replicate his design.

    “I need to protect my design, because it’s really pretty easy,” he said then. “A monkey could do it.”

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