I know I’m Always Confused by how Kale and “Chikin” are “to some Extent Actually Identical.” Are You?

kaleYou’ve probably seen the “eat more kale” bumper stickers. Out of curiosity, when you saw the bumper sticker did you think of Chick-Fil-A? According to the U.S. Patent and Trademark Office there is potential for consumers to confuse “Eat More Kale” and Chick-fil-A’s slogan, “Eat Mor Chikin.” Because of the potential for “confusion,” the application to trademark “Eat More Kale” has been refused.

The trademark attorney’s analysis foresees potential confusion between the two trademarks. The attorney disputes the applicant’s assertion of the differences between kale and chicken; in fact she says “the similarities between the marks are more important than the differences.” The only similarities I see, is that these are both food items. She goes on to say “the marks urge action in the same way, only as to different substances and both of them are commonly consumed types of food.” Apparently, food is enough to be similar? In my mind the two types of food are very different and would likely be consumed in different environments, by people with varying health consciousness.

For a little more clarity on the issue of similarity, I turned to the trusty old Black’s Law Dictionary. Similarity is defined as follows, “The resemblance of one trademark or copyrighted work to another. How closely a trademark must resemble another to amount to infringement depends on the nature of the product and how much care the typical buyer would expect to take in making the selection in that particular market…”

The definition didn’t help: again, I am having a hard time understanding when these two foods or markets would be in competition.

The attorney continues this line of reasoning, eventually saying that “the goods at issues are to some extent actually identical.” Ok, now my confusion has been raised to another level. I thought identical means exactly the same, so how could items be “to some extent” actually identical?

Read the complete US Patent and Trademark office, official letter,  here.

Perhaps because I am not a trained lawyer, I am having a hard time understanding how kale and “chikin” and their various mark are nearly identical. Overall, I find this decision rather outrageous. I think most people can differentiate between the two products, and their respective marks. If you can’t, please let me know.

:) heidi

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