Tuesday, November 29, 2011

Trademark law run amok

So Chik-Fil-A is complaining about some dude with a local business whose T-shirts read "Eat More Kale."  Chik-Fil-A says the shirts diminish it's trademark.

In my view, this expands trademark law beyond what it should be. 

Plus, I recall a cattleman's association (I believe) who sported bumper stickers that read "Eat More Beef!" long before I'd ever heard of Chik-Fil-A's slogan.

Here's the article:

Vt. folk artist says he'll fight Chick-fil-A giant for rights to phrase 'eat more kale'

MONTPELIER, Vt. (AP) -- A folk artist expanding his home business built around the words "eat more kale" says he's ready to fight root-to-feather to protect his phrase from what he sees as an assault by Chick-fil-A, which holds the trademark to the phrase "eat mor chikin."
Bo Muller-Moore uses a hand silkscreen machine to apply his phrase, which he calls an expression of the benefits of local agriculture, on T-shirts and sweatshirts. But his effort to protect his business from copycats drew the attention of Chick-fil-A, the Atlanta-based fast-food chain that uses ads with images of cows that can't spell displaying their own phrase on message boards.
In a letter, a lawyer for Chick-fil-A said Muller-Moore's effort to expand the use of his "eat more kale" message "is likely to cause confusion of the public and dilutes the distinctiveness of Chick-fil-A's intellectual property and diminishes its value."
Chick-fil-A, which trails only Louisville, Ky.-based KFC in market share in the chicken restaurant chain industry, has a long history of guarding its trademark, and the letter listed 30 examples of attempts by others to co-opt the use of the "eat more" phrase that were withdrawn after Chick-fil-A protested. The Oct. 4 letter ordered Muller-Moore to stop using the phrase and turn over his website, eatmorekale.com, to Chick-fil-A.
Muller-Moore, 38, of Montpelier, says he won't do that.
"Our plan is to not back down. This feels like David versus Goliath. I know what it's like to protect what's yours in business," he said.
So he has enlisted the help of Montpelier lawyer Daniel Richardson and the intellectual property clinic at the University of New Hampshire School of Law's Intellectual Property and Transaction Clinic.
"Bo's is a very different statement. It's more of a philosophical statement about local agriculture and community-supported farmers markets," Richardson said. "At the end of the day, I don't think anyone will step forward and say they bought an 'eat more kale' shirt thinking it was a Chick-fil-A product."
Chick-fil-A spokesman Don Perry said the company does not comment on pending legal matters.
Muller-Moore, who describes himself as a folk artist who earns a living working as a foster parent for an adult with special needs, said he started using the phrase "eat more kale" in 2000. A farmer friend who grows kale, a leafy vegetable that grows well in Vermont and is known for its nutritional value, asked Muller-Moore to make three T-shirts containing the phrase for his family for $10 each.
A few weeks later, the friend told Muller-Moore that people kept asking for the shirts. The phrase helped him get his silkscreen business going, which he later expanded through the Internet. Now, he prints "eat more kale" on hooded sweatshirts too. And he has the words printed on bumper stickers that are common throughout central Vermont.
Five years ago, Muller-Moore said, he received a similar cease-and-desist letter from Chick-fil-A, telling him to stop using the phase. A pro bono lawyer traded a handful of letters with Chick-fil-A on his behalf. After the letters stopped, Muller-Moore assumed the issue had been decided in his favor and kept making the products.
But as his business grew, Muller-Moore decided to protect the phrase that became his unofficial trademark. He filed an application last summer with the U.S. Patent and Trademark Office to protect "eat more kale." The application is pending.
Vermont Law School professor Oliver Goodenough, who specializes in intellectual and property law, said the kale versus "chikin" fight reminded him of a case two years ago, when a Morrisville microbrewer that makes a beer called "Vermonster" ran afoul of the Monster energy drink company. That case was settled when the makers of Vermonster agreed never to go into the energy drink business.
Goodenough said there was little likelihood consumers would confuse kale with chicken.
"This looks a bit like an example of over-enthusiasm for brand protection," he said. "There are (law) firms in the United States that take this over-enthusiasm for brand protection seriously and believe the more they can scare away the better. If folks aren't deeply committed to this and it's a funny byproduct, maybe they won't fight it."

Monday, November 28, 2011

Punitive Damages for Texting and Driving

A Collier County circuit court judge has ruled that the punitive damages can be sought in a case where the driver who ran over and killed a cyclist was alleged to have been texting and driving. 
Typically, only compensatory damages are permitted.

The O'Brien Law Firm represents families of those killed by the negligence of car and truck drivers.  We have handled wrongful death cases involving car and truck drivers injuring and/or causing the death of bikers. 

Recently, Attorney Aaron O'Brien, in a car vs. bicyclist crash causing death case, wrote a warning to the insurance company for the driver.  Mr. O'Brien asserted boldly that although it may not have been done yet in Florida, he intended to seek and collect punitive damages from the driver, whom O'Brien alleged was texting and driving at or near the time of the crash.

Whether or not another law will do any good, if texting and driving is as reckless as driving while intoxicated, the civil damage consequences should be just as high.

Here's part of the text from the News-Press article:

James Caskey Jr. was riding his tricycle on a clear August morning in North Naples when he was struck by a car and died from head injuries.
In what the 62-year-old Caskey’s widow, Margaret S. Caskey, 64, and her attorneys say is a first in Florida, a Collier circuit judge has ruled that punitive, or triple, damages can be sought in her lawsuit because of her claim that the driver in the crash was text messaging. The driver and defense attorneys deny the allegation. The case is scheduled for trial in March.
About the same time that case is going to court, lawmakers will once again debate whether they should make texting while driving illegal. The odds are long that the bill — being co-sponsored by state Rep. Irv Slosberg, D-Boca Raton, a highway safety advocate whose daughter, Dori, died in a car crash several years ago — will even get out of committee. It went down to defeat last year, partly because legislators question how it can be enforced and partly because of the anti-government regulation atmosphere that prevails in Tallahassee.
Highway safety advocates say if legislators fail to act, the legal system will have to deal with the problem in cases such as Caskey’s.
Laws against texting and driving are mounting throughout the United States and other countries. Thirty-five states, Washington, D.C., and Guam have bans on texting and driving, as do Germany and the United Kingdom. Locally, the Lee and Collier school districts are among agencies that have personnel policies prohibiting texting by employees while driving agency vehicles.
The reason for the backlash is statistics.
Texting while driving resulted in 16,141 deaths from 2001 to 2007, according to a study released last year by the University of North Texas Health Science Center.
A 2009 study by the Virginia Tech Transportation Institute found that long-haul truckers increased the risk of crashes by 23 times when texting.
And a 2009 Car and Driver magazine experiment found that texting while driving had a greater impact on safety, including longer stopping distances, than driving drunk.