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Lantz v. U.S. Department of Commerce

United States District Court, District of Columbia

July 31, 2018

JAMES LANTZ, Plaintiff,



         Kale is everywhere. Even Chick-fil-A, the fast-food chicken chain, has begun serving the green-its “Superfood Side” features kale amid a blend of broccolini, roasted nuts, and dried cherries. But while the restaurant has come around to kale, it has no appetite for a certain slogan that may have contributed to the vegetable's rise. Namely, when Vermont-based T-shirt designer Bo Muller-Moore filed an application to trademark the phrase “Eat More Kale” in 2010, Chick-fil-A sent a letter telling him to stop selling merchandise bearing the phrase and urged the federal government to deny his application. The restaurant claimed that consumers would confuse “Eat More Kale” with its own trademarked catchphrase, “Eat Mor Chikin.”[1] Muller- Moore pressed on, his battle with Chick-fil-A went viral, and, in the end, the U.S. Patent and Trademark Office (“USPTO”) granted him the trademark. See Abby Ohlheiser, “Eat More Kale” Guy Wins Trademark Battle with Chick-fil-A, Wash. Post (Dec. 12, 2014),

         The plaintiff in this case, James Lantz, is producing a documentary about this saga. He filed a request under the Freedom of Information Act (“FOIA”) seeking documents related to the “Eat More Kale” trademark application. In response, USPTO released some 160 pages of emails-some with redactions-and withheld a few pages in their entirety pursuant to one of FOIA's exemptions. Lantz then filed this lawsuit, contending that USPTO did not adequately search for records and improperly withheld responsive emails. The parties have both moved for summary judgment. For the following reasons, the Court will grant USPTO's motion and deny Lantz's.

         I. Background

         Lantz filed a FOIA request with USPTO in October 2015 seeking:

copies of emails within the USPTO system that concern Trademark Application serial number 85412053 . . . for the mark, ‘Eat More Kale' or contain any of the following phrases and/or names: ‘Eat More Kale', “Bo Muller-Moore' or ‘Robert Muller-Moore' (the applicant) which may be listed as ‘Muller-Moore, Robert' or ‘Muller-Moore, Bo' or ‘Daniel Richardson' which may be listed as ‘Daniel P. Richardson' or ‘Ashlyn Lembree' which may be listed as ‘Ashlyn J. Lembree' (the attorneys of record)

Decl. of Kathryn Siehndel Supp. Defs.' Mot. Summ. J. (“Siehndel Decl.”) Ex. D.

         USPTO identified two offices that could have the requested records and instructed nine employees to conduct searches. Siehndel Decl. ¶ 12. The agency ultimately collected 45 pages of responsive records. Id. ¶ 17. It declined to release three pages pursuant to FOIA Exemption 5, which allows agencies to withhold information that would be privileged in civil litigation. USPTO released the remaining pages with some redactions. Id.

         Lantz appealed USPTO's response within the agency, contending that it did not conduct an adequate search for responsive records and challenging the agency's reliance on Exemption 5. Id. at ¶ 22. USPTO responded by having two more employees conduct searches, which produced 52 additional pages of records. Id. at ¶ 23. Still unsatisfied, Lantz in May 2017 filed this suit against USPTO (and its parent, the Department of Commerce) raising the same two arguments as in his agency appeal. Compl. ¶ 13. USPTO conducted yet another search, this time working with its IT department to recover emails from a failed hard drive. Siehndel Decl. ¶ 28. The agency came up with about 70 additional pages. Id. at ¶ 30.

         All told, USPTO's three searches generated 164 pages of emails. Siehndel Decl. ¶ 31. The agency released 116 pages in full and, relying on Exemption 5, it withheld five pages in their entirety and redacted information from 43.[2] Id.; see also id. Ex. A (Vaughn index). The parties have now both moved for summary judgment, and those motions are ripe for review.

         II. Standard of Review

         FOIA requires federal agencies to produce their records upon request unless one of the statute's nine exemptions applies. See 5 U.S.C. § 552(b). Disputes about the adequacy of an agency's search for documents or about the invocation of FOIA exemptions are properly decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Summary judgment is appropriate when the pleadings and record show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In the FOIA context, “summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006).

         III. Analysis

         Again, Lantz contends that USPTO's search was inadequate and that its reliance on Exemption 5 was improper. The Court ...

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