C3 Patent and Intellectual Property Law

May182010 | Steve O'Donnell

Chick-Fil-A only wants you to eat more chicken.

As reported by the Consumerist, Chick-Fil-A has a beef (get it?) with a company suing the slogan “Eat More Produce.” Is this a case of someone being a bit over zealous and firing off unreasonable cease and desist demands?

On its face, this does sound like a pretty silly controversy. I think it’s doubtful that either Chick-Fil-A or their attorneys really think that someone using “Eat More Produce” will harm their business identity, but is that actually the concern?

I suspect that the actual impetus for the letter is less concerned with this one specific alleged infringement than it is with stopping a problem before it becomes one. If I was Chick-Fil-A’s lawyer (I’m not, but Chick-Fil-A--call me)I would suggest doing the same thing.

If a trademark owner fails to protect their trademark they run the risk of losing it. When a brand becomes so tightly linked to a product that the terms become interchangeable, then the trademark loses it’s unique quality. Escalator used to be a trademark but has become a generic term for a moving staircase; both Kleenex and more recently, Google, have been fighting against this erosion for years.

Consider this hypothetical: Chick-Fil-A does nothing about “Eat More Produce” because its considered too far-fetched of a claim to make; later, someone starts using “Eat More Seafood” and Chick-Fil-A does nothing because they don’t sell seafood; later someone starts using “Eat Mor Tofu,” that’s getting closer, the misspelled “More” is making this a pretty obvious trademark issue. Let’s go one farther and say that some eventually starts using “Eat Mor Turkey.” That finally gets Chick-Fil-A’s feathers ruffled so they take it to court. The judge looks at how Chick-Fil-A has allowed others to use similar slogans without doing anything to police their mark and quite possibly rules that Chick-Fil-A has lost their trademark because they haven’t done anything to protect it.

On the other hand, if Chick-Fil-A had contacted the minor alleged infringers and come to some agreement with each, they would have that paper trail to prove that they haven’t given up on protecting their trademark.

Although I can’t predict what will eventually happen in this matter, my guess is that each side will send a couple letters to the other side before an agreement is made that Chick-Fil-A will not protest the “Eat More Produce” company’s slogan as long as they refrain from entering the fast food or poultry markets. That would protect Chick-Fil-A and let the other company continue as they’ve been without either side having to commit to costly litigation with an uncertain ultimate result.