"Eat More Kale" Update

Back in December, this blog posted the story of Chick-fil-A's attempt to shut down an independent tee shirt maker in Vermont who was producing "Eat More Kale" tee shirts.  The story has now moved to a new level with the report that "an examining attorney in the trademark office issued a preliminary decision that there is a likelihood that people would confuse the sources of the Eat More Kale and Eat Mor Chikin phrases, thinking they come from the same place."

The next level of this story transcends the issues of trademark and intellectual property and highlights the challenges of legal education.  How do you convince students that the law is founded upon logic and reason when there are so many inexplicably illogical and irrational decisions?  According to the marklaw.com website, the following factors are to be considered in determining the "llikelihood" of consumer confusion:

• Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services. Even where the plaintiff's products are not exactly similar, the court may in some cases consider how likely the plaintiff is in the future to sell similar products.
• Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
• Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
• Whether the marks are similar in appearance, phonetic sound, or meaning.
• How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer (e.g. business owners versus children), or the more expensive the product, then the more discriminating the consumer is expected to be, and the less likely confusion will be attributed to them).
• Whether or not the companies are accessing overlapping customer bases. If the companies both sell largely to senior citizens, to teachers, or to home-based business owners, there is more likely to be consumer confusion.
• The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
• Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.

Even a liberal review of the evidence reveals not a single one of these factors weighing in favor of consumer confusion.  To support this decision, the reasonable consumer would have to be one who cannot distinguish between a chicken sandwich and a tee shirt; and cannot comprehend differences among words containing the letter "'k"; and who has lived in a cave so long as to be unaware of fast food culture and practices. No wonder students find the law confusing.