Who Owns a Condiment — a Company or a Culture?

For small businesses, naming products can be David vs Goliath.

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In the last two months, three stories about intellectual property and food have leapt off the grocery shelf and into newspaper headlines. Most recently, Momofuku — the consumer packaged goods arm of David Chang’s culinary empire — purchased the trademark “chile crunch” as well as filing for “chili crunch” and sending cease-and-desist letters to some small businesses that were using these terms on their own commercial chili oils. This is the one currently dominating the food sections of every major newspaper.

Earlier this month, Taste proclaimed, “We Need to Talk about Trader Joe’s.” This story detailed several harrowing scenarios where the company was, in the words of writer Adam Reiner, “hijacking the ethnic food aisle and flooding the market with cheap knockoffs.” Their practices included asking small, minority-owned businesses for samples and enticing them with the notion of having their products carried by a significant national retailer. After several months, Trader Joe’s would release a private label “dupe” of the samples they had initially requested or tasted, such as Brooklyn Delhi’s Roasted Garlic Achaar, Auria’s Malaysian Kitchen’s sambal, and Fly by Jing x Little Sesame’s chili crisp-topped hummus.

In February, the Wegmans supermarket chain was accused of stealing Osakana founder Yuji Haraguchi’s concept, breaching nondisclosure and noncompete agreements between the parties. Wegmans’ Astor Place location (a few blocks away from Osakana) houses the sushi counter “Sakanaya,” which bears similar typography and concept to that of Osakana. Haraguchi took Wegmans to court, and Wegmans countersued. Sakanaya continues to operate.

Through these three stories runs a common thread; they are David and Goliath tales. Unfortunately, outside of the Bible, when David puts down the slingshot and sues, he rarely wins.

I constantly think about the risks of unleashing my own sauces to the world. After I closed my restaurant in 2020, I kept my brand Poi Dog alive (it’s a term of endearment that means “mixed breed” or “mutt” in Hawaiian Pidgin) through a line of sauces rooted in my restaurant’s recipes and family’s food culture. The Poi Dog line encompasses my own invention Guava Katsu; a pineapple-based barbecue sauce called Poi Dog Huli; and Chili Peppah Water. The latter is a ubiquitous condiment in Hawai’i, seen on every table next to the soy sauce in the same way chili crunch or crisp is in China. Chili pepper water is typically a homemade condiment, combining ginger, peppers, vinegar, and sugar. I tell people that I didn’t invent it; the only thing that sets mine apart from the ones my uncles make for a family barbecue is that I put a label on my bottle.

Will my sauces appeal to mass-market consumers? I hope so. I want to sell a lot of sauce and make a lot of money. But will my sauces get so popular that Wegmans, Trader Joe’s, or Momofuku might release their own versions? It could happen. If I can get them trademarked, will that prevent them from doing so? Probably not. Would I be able to afford to fight them? Nope. Does writing about this in one of this country’s biggest food publications terrify me? Yes. Writing this article puts me in harm’s way.

It has never occurred to me to trademark “Chili Peppah Water,” (and please, for the love of God, do not do this), just as it might never have occurred to many small brands that someone owned the trademark “chile crunch.” If you grew up with chili pepper water or chili crisp or crunch, it was probably all around you. So how could you own something that belongs to everyone?

I would like the freedom to call a food I make, that is part of the culture I identify with, by the name that best describes it — even in translation. I would like other people like me to have this freedom.

I’ve also seen the names of food I care about gravely misused (say, every fish salad joint that spells poke with an accent on the “e”). This happens a lot in America, and it’s actively normalized. We say “panini” when we mean “panino” or “cannoli” when we mean “cannolo.” That is just the tip of the Italian iceberg. When mispronunciations and word misuses enter our parlance, anybody who doesn’t fall into line is deemed uppity or accused of putting on airs. There are viral TikTok discourses about this, as non-Americans come to this country, befuddled by how their foods have evolved in both taste and pronunciation. These foods, Americanized, have all endured erasure at the hands of Goliaths.

It may have been hard, a decade ago, to imagine David Chang as a Goliath. Now here he is, defending a trademark that he rightfully owns, and catching every one of us who evenly cuts their blue kitchen tape off guard. Momofuku’s pantry goods proclaim their contents with a graphic depiction of my greatest fear: torn blue tape. It’s been many years since Momofuku was a scrappy little Japanese ramen shop owned by a Korean-American chef — but known for its non-credited Taiwanese pork buns. It’s now a Very Big Company peddling pan-Asian ingredients with their provenance erased.

Momofuku’s flurry of cease-and-desist letters have started a veritable firestorm of discussion. Many makers and commenters scream “theft,” legitimately. Others point to an unfair system, which is also a valid point of view.

“The U.S. protects the people who got here first. Or think they got here first,” says Ari Miller (the redistributor of my sauce company’s food service sauces, not my husband, who has the same name). The owner of 1732 Meats and Premium Products has a law degree and did his own company’s trademarking. “Companies are not inherently moral. People are. Companies function in the system that has been constructed. If the system says you have to defend your marks, then you have to defend your marks,” he says.

The same impetus to defend the people who think they discovered something is inherently American. After all, we still debate the term “discover” at Thanksgiving, and question the validity of Thanksgiving itself, as many of us gather around the table, embracing foods unfamiliar to the vast majority of the country — but only if they can be eaten alongside a roasted turkey.

America is really good at protecting things that people lay claim to. China, the birthplace of chili crisp, is less so. I grew up in Hawai’i but also in Hong Kong where in the market, I had to develop a trained eye to spot the many, many dupes of the legendary Lao Gan Ma, which has had its own trademark battles. As much as Lao Gan Ma has fought to protect its brand, its success bred variety (a good thing) along with counterfeits (less good).

I don’t think Momofuku’s cease-and-desist letters will kill the variety of chili crunches that have begun to proliferate in America. But the way we do things in this country is broken. It’s the way we divorce the names of foods from their cultural origins; the way we have granted trademarks for ubiquitous products unfamiliar to mainstream America, but ubiquitous somewhere. Our systems also allow large grocery brands to steal the ideas of small makers. So what’s a small brand like mine to do besides keep trucking along? And who is going to make the first Poi Dog Chili Peppah Water dupe?

Update: On April 12, in an episode of The Dave Chang Show, Chang and Momofuku CEO Marguerite Preston addressed the controversy and stated that the company would no longer be enforcing the trademark.

Read the original article on Food & Wine.