United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.” 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), https://perma.cc/XSJ9-KWXL.
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.
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.
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.
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.
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
Id.; see also id. Ex. A (Vaughn
index). The parties have now both moved for summary judgment,
and those motions are ripe for review.
Standard of Review
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).
Lantz contends that USPTO's search was inadequate and
that its reliance on Exemption 5 was improper. The Court