The reaction to the challenge by southern fast-food giant Chick-Fil-A, whose ads feature cows exhorting people to “Eat Mor Chikin,” to Bo Muller-Moore, the Vermont artist who creates the “Eat More Kale” products, has been swift and strong, drawing righteous indignation and the solidarity of allies up to and including Gov. Peter Shumlin.
The case brings to mind the recent difficulties of Matt Nadeau and his craft brewery, Rock Art Brewery of Morrisville, which found itself embroiled in a similar trademark dispute with Hansen Natural Corporation, which did back away from legal action in the face of public pressure and ridicule.
It also brings up the case of the computer chip company Intel - owner of the trademark “Intel inside” - forcing a tiny Massachusetts art gallery, Art Inside, to change its name.
Unsurprisingly, the companies explain that they are duty-bound to protect their trademarks, or they risk losing them.
That, in fact, is the case.
But this sanctioned corporate bullying begs a question.
Why?
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For all the bluster about corporate America's role as “job creators,” people like Bo Muller-Moore and Matt Nadeau work quietly under the radar, hundreds of hours a week, creating their own jobs. Many such artisans/sole proprietors do so because they can't find a traditional place in this current economy.
As much as we like to romanticize the lives of our artistic entrepreneurs, the ones who succeed do so because of long, difficult, brutal work, and enormous personal and financial sacrifice.
They succeed in spite of baffling and arcane tax and labor regulations.
They succeed in spite of lack of access to operating capital; often, owners of small businesses strain or even trash their credit because they have financed their lives and livelihoods on their credit cards.
And just at the point where small businesses like Muller-Moore's and Nadeau's move beyond survival, along come companies like Chick-Fil-A and Hansen Natural Corporation and Intel and kick them in the groin.
Chick-Fil-A boasted $3.5 billion in sales in 2010, and Hansen boasted $1.49 billion in sales that year.
You have to ask yourself: if companies like Chick-Fil-A and Hansen are playing by the rules to protect their interests, who creates these rules and for whom?
As part of the federal Trademark Technical and Conforming Amendment Act of 2010, introduced by U.S. Sen. Patrick Leahy, D-Vt. (who cited the Rock Art Brewery case), U.S. Secretary of Commerce Gary Locke was required to submit a report on trademark litigation tactics.
Locke concluded that “[u]ltimately, because trademark enforcement is a private property rights litigation issue, if abusive tactics are a problem, such tactics may best be addressed by the existing safeguards in the litigation system in the U.S. and by private sector outreach, support, and education relating to these issues.”
Bull. Such tactics “may best be addressed” by making the abusive tactics illegal.
The report, in other words, sidesteps the absurdity, waste, and abuse of this system in favor of a facile Ayn Rand bromide.
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This fall, the Occupy Wall Street movement has been fueled by the inchoate sense that the entire mechanics of the United States, from its government to its economy to its society, have been engineered to roll over the interests of people who are struggling to make it in this country.
Politicians and corporate executives who still struggle with understanding that sense of anger and motivation can look at the Eat More Kale/Eat Mor Chikin debate as yet another obvious and graphic example of the absurd inequities in this country.
When the federal government, which makes the law, would rather tell small businesses that they are on their own because these trademark disputes are private legal matters than recommend that the law be changed, it provides yet another reason that people are camping in streets trying to call attention to the issues of corporate accountability and government disfunction.
Our fragile economy will be rebuilt by business people like Muller-Moore and Nadeau, one job at a time, with no thanks to or help from a federal government that has long ceased to represent most of its own people.