The Chick-fil-A Gay Marriage Controversy: When Brands and Politics Collide

The Cathy Family / Chick-fil-A Website

Privately-owned, Georgia-based fast food chain Chick-fil-A is apparently not afraid of courting controversy.  

Company President Dan Cathy recently gave an interview to the Baptist Press in which he said he was "guilty as charged" in support of what he called the biblical definition of a family.  

This was not a slip of the tongue.  Indeed, on the Chick-fil-A corporate website, Mr. Cathy's biography confirms that his "personal passion" is "to glorify God by being a faithful steward of all that is entrusted to us."

As evidenced by these statements, Chick-fil-A represents a "red brand," that is, a mainstream consumer brand that appeals to some purchasers by openly espousing principles that tend to fall on the conservative/Republican end of the political spectrum.

According to a recent survey, which confirmed previous findings published by AdAge in 2010, political viewpoints strongly affect consumer loyalty and perceptions.  And there are plenty of brands to go around, regardless of your particular political viewpoint.

Studies consistently show that "Blue brands," or those top companies favored by liberals/Democrats include Google, Sony, Johnson & Johnson, JetBlue and Ben & Jerry's.

Ben & Jerry's "Occupy Wall Street" Banner / Ben & Jerry's Website

Most of the time, these brands' outward expression of philosophical principles that overlap with political views still allow them to prosper by maintaining a strong customer base by remaining loyal to those principles without significantly alienating those who share a different viewpoint.  The simple reality is that Ben & Jerry's viewpoints, no matter how controversial, simply haven't negatively affected overall sales of their popular flavors.

But sometimes, mixing consumerism with politics can turn ugly.  And Chick-fil-A has become a case in point.

Mr. Cathy's interview led to the fast food chain's expansion facing significant, vocal opposition from Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino, who has called the chain a direct insult to gays, and has informed the company that it is simply not welcome in Boston.

Putting aside the First Amendment implications of these threats, it is clear that when a brand wades too deeply into political waters, there can be undesirable economic consequences.

Understanding Trademark Bullying

Many successful companies seeking to aggressively protect their intellectual property portfolio of valuable brands have been accused of becoming “trademark bullies.”  Their accusers argue that rather than using a reasoned, measured approach to address actual commercial threats, these large brand owners deliberately use the specter of civil litigation to threaten alleged infringers into submission.

Trademark infringement litigation may be brought either in federal court, or can also be commenced by opposing or seeking to cancel trademark applications in the United States Patent and Trademark Office (“USPTO”) in a lengthy and byzantine administrative proceeding that can last years and cost the parties thousands of dollars.  Because the cost of litigating trademark disputes can be prohibitive, especially for smaller companies or individuals, many accused infringers choose to settle or otherwise resolve their conflict without the merits of the underlying conflict ever being adjudicated.

Consequently, commentators -- and sometimes even the brands’ own customer base – have vocally accused some brand owners of overzealously enforcing their perceived trademark rights against others in a manner that smacks of bad faith or anticompetitive conduct used to squelch competition or free speech.

The issue has recently gotten so much attention, that Trademarkia has published its list of "biggest trademark bullies", and the USPTO itself released a report to Congress on the issue.

Why would savvy and well-represented companies sometimes risk going too far and potentially alienating their own customer base?  While every case is different, under existing U.S. Intellectual Property law, an established brand may very well face a Hobson’s choice:  risk the ire of an angry mob, or face ongoing brand erosion and even extinction in a world of ever-expanding fakes and imitators.  A few examples of alleged "trademark bullying" warrant mentioning:

• Chick-Fil-A sells more than $4B of sandwiches each year.  The company’s humorous “EAT MOR CHIKIN” trademarked slogan held up by aggrieved cattle (see right), became an instant hit for the company’s efforts at marketing and promotion.  When a small local farmer named Mr. Muller-Moore sought to federally register the “EAT MORE KALE” slogan in the U.S. Patent and Trademark Office, the corporation opposed his application on the grounds that his mark was likely to cause confusion with their slogan.

• Famous fashion house Louis Vuitton has serially sued Hyundai for a Super Bowl advertisement that depicted a basketball emblazoned with the LV logo, had a case against the makers of the movie Hangover 2 dismissed, and famously demanded that University of Pennsylvania Law School remove a promotional poster.

• Hansen Beverage Company, maker of the popular “MONSTER ENERGY DRINK” sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer.  Ultimately, after a public outcry on Twitter, the parties settled their dispute outside of court, with Rock Art permitted to keep selling their brew.

• Non-profit Susan G. Komen for the Cure opposes dozens of trademark applications for wording that includes “FOR A CURE” or “FOR THE CURE.”  When the charity opposed an application for “MUSH FOR THE CURE” sought by a local non-profit, it became national news. 

So what do each of these four examples have in common? Each circumstance may seem like an example of brand protection gone awry, and perhaps they are.

However, Difficult Legal Lines Must Inevitably Be Drawn

It is worth reminding their critics that if each of these brand owners had not acted to draw a line in the sand, they would undoubtedly face the prospect of closer and closer copyists, and eventually encounter even more widespread infringement.  Where any specific line between infringer and innocent victim is drawn in each case is another matter, but it is clear that a legal line still must be drawn somewhere, and the clear incentive for brand owners under current law is to be zealously protective of their investment in their brands.

One legal reason for brand owners to be zealous is that in the event of a brand owner’s complete failure to act, their targets may be entitled to legally rely on the affirmative defense that their delay has been inexcusable.  This potentially crippling defense is known as “estoppel by laches” or “laches” for short.  The laches defense is also sometimes described as "estoppel by acquiescence."

Similar to an undefined statute of limitations, laches may be available as a defense when an infringer was actually known about by the Plaintiff, or even should have been known about under the circumstances, and the delay in bringing suit was inexcusable.

An essential element of laches is the requirement that the party invoking the doctrine has somehow changed its position as a result of the delay.  In other words, the defendant is now in a worse position than at the time the claim should have been brought.  For example, the delay in asserting the claim may have caused the defendant to open up more stores, hire more employees and build up its own reputation in reliance on the brand owner’s unfair inaction.

Even worse yet, if a brand owner fails to act against numerous infringers in the marketplace, it may very well face the dire prospect of losing its trademark altogether under a doctrine known as “genericide.”  

Some words that started out as brand names and “killed” by such widespread genericide are: aspirin, bundt cake, cellophane, dry ice, escalator,
 granola, kerosene, linoleum, minibike, nylon,
 pogostick, tarmac, thermos, touch-tone, trampoline,
 yo-yo and zipper.

In each of these cases, the brand owner failed to act to sufficiently police the marketplace to stop widespread third-party unauthorized uses.  Ultimately, these erstwhile brands passed into the netherworld of “dead” trademarks, devoid of legal protection altogether.

But Are These Extreme Historical Examples of Genericide that Can’t Recur Today?

Harris Interactive released a list of products ranked by brand equity, a measure of the brand's popularity with U.S. consumers.  Among the top 10 are Ziploc food bags, Hershey’s Milk Chocolate Candy Bars, Kleenex Facial Tissues, Clorox Bleach, WD-40 Spray Lubricant, Heinz Ketchup, Windex Glass Cleaner and Campbell’s Soups.  In other words, some of the most valuable and well-known trademarks in the world.

It is clear from this list alone that success in today's marketplace can be a double-edged sword.  The companies who manufacture these products have done an incredible job in advertising and marketing them, so successful in some cases that the brand name is in danger of becoming a genericized trademark.  If the companies on this list aren't zealous, they could end up losing the trademark for the products that they have worked so hard to market successfully.

Ultimately, trademark law is intended to protect consumers and companies from confusion with established brands.  Quality control and brand reputation are crucial in today's marketplace, and zealous trademark protections are a perfectly logical and legal way to protect customers from fraud, and to give companies the tools they need to protect their valuable investment.  In conclusion, in this age of rampant counterfeiting and infringement, it is important to fully understand why in their zeal to protect their valuable brands, aggressive tactics can seem like a viable option for brand owners, even if sometimes they risk going too far.