The emotional aspect of intellectual property enforcement cannot be overstated, especially among the creative types who help move our economy and society forward. What is true for IP owners seeking to assert their rights is equally true for those who perceive themselves to be targets of enforcement, and that this dynamic is the key to our little law. It makes the profession very interesting and exciting to practice. , adding a bit of celebrity spice can often help push IP enforcement stories into the mainstream media, especially when the issue involved is related to the branding of a familiar product.
To take the most recent example, last week, a hardcore intellectual media outlet like the Today show published an article titled “Chili Crunch'' in reference to celebrity chef (and former star of this column) David Chang's popular dish. '' was seen focusing on an unsuccessful attempt to claim the trademark. Momofuku chili crunch chili oil. It was supposed to be a routine cease-and-desist letter, presumably to comply with trademark owners' demands for trademark enforcement, but allegations of cultural appropriation and boycott threats soon foreshadow a public apology from Chan. This was a troubling development.
As is often the case, the story actually begins much earlier. First, this is not the first time Momfuku has turned to an IP lawyer to protect its rights. In 2022, the company sent a number of cease-and-desist letters to competing restaurant business Yuzu Kitchen because Momofuku, which means “lucky peach,” used Yuzu's peach logo. Complaints were filed with the SDNY after these letters, but the lawsuit was resolved before any substantive action was taken. Still, in my column summarizing Chan's podcast a year later, I said that Chan had expressed “frustration with what he called 'rampant theft' in the food industry” and that fashion houses He likens it to the struggle he has in dealing with “fast fashion” competitors such as: Like Zara. ”
That frustration may have been informed by Chan's experience on the receiving end of IP claims. Also in 2022, Chan came across Momfuku's Chili Crunch product, which was launched in 2020 and was the subject of its own trademark lawsuit. Chile Colonial, Inc., the registered owner of the “Chili Crunch” mark, filed a Colorado lawsuit against Momofuku in late August 2022, but Momofuku purchased the mark in March 2023 in a settlement. . A year later, the company filed a trademark application. Regarding the “Chili Crunch” mark, the majority of recipients are “small brands founded by Asian Americans,” in parallel with cease-and-desist letters being sent to a series of companies selling Chili Crunch products. It has become.
The backlash was immediate, with Mr. Chan finding himself branded as a trademark bully, with a lawyer for one of the letter's recipients calling Mr. Chan “expecting him to succumb to financial pressure.'' “They are bullying small and medium-sized businesses with this letter campaign.” To make matters worse, Mr. Chan was accused by his fellow Asian American food workers of “gut-shaming” him with legal action.
Momofuku initially tried to refute the charges, explaining that he had to take action because trademark owners have a legal obligation to police their trademarks. That explanation, while legally correct, was not well received by those dissatisfied with the situation. As a result, the company said, “This situation has created a painful divide between Momofuku, our beloved AAPI community, and the other companies we share our grocery store shelves with.” I had to admit it. But the truth is, we all want the same thing: to grow, to succeed, and to make America's pantries and grocery stores more diverse places. ”
Mr. Chan felt once again let down by the legal process when it came to intellectual property issues. Not only was he forced to purchase trademarks to protect himself, but he was also unable to use the purchased trademarks to position his company's interests more favorably from a trademark perspective. Under these circumstances, what I wrote last year about his comments on intellectual property rights rings true. In other words, Mr. Chan's “status as an intellectual property owner continues to be frustrated by the lack of respect for intellectual property in the food industry.'' […] Especially when we see innovators in other industries being rewarded through viable mechanisms to balance access to intellectual property-protected material with the need to foster further innovation. that's right. At the same time, there must have been at least some hope on his part that targeting small businesses owned by others of the same ethnic background might be received snubbed in the court of public opinion. .
After all, it's hard not to feel for business owners like Chan, who have already spoken openly about their struggles navigating the complex IP legal landscape. But thankfully, he can afford quality legal representation and is also aware of the legal options available to protect his rights on both the attacking and defending sides of the intellectual property ledger. Full menu available. Small businesses in his industry, even other restaurants and food wholesalers, don't have the same luxuries available. But as seen in the Chili Crunch conflagration, the power of the masses cannot be underestimated. In fact, it can serve as a great leveling device for people facing aggressive behavior at the hands of a trademark bully. This won't be the last time the former trademark enforcer will be kicked out of the kitchen.
Please feel free to send any comments or questions to gkroub@kskiplaw.com or on Twitter. @gkroub. Suggestions and comments on the topic are welcome.
Gaston Kluve lives in Brooklyn. Kraub, Silvershire & Kolmikov PLLCIntellectual Property Litigation Boutique, and Markman Advisors LLCis a leading consulting firm on patent issues for the investment community. Gaston's practice focuses on intellectual property litigation and related counseling, with an emphasis on patent matters.you can contact him gkroub@kskiplaw.com Or follow him on Twitter: @gkroub.
