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Update: On April 12, David Chang announced on his podcast that Momofuku will no longer enforce the trademark.

Since Momofuku and its founder David Chang served cease and desist orders demanding small businesses stop using the terms “chili crunch” or “chile crunch,” an outcry has ensued. The fight, as reported by The Guardian, started because Momofuku holds the trademark for the phrase “chile crunch.”

The backlash against Chang and Momofuku has been loud and persistent. “I reject the notion that someone could exclusively own something so ingrained in my culture,” columnist Jenn Harris wrote in the Los Angeles Times. Chef Jon Kung tweeted that Momofuku's actions were “disappointing and disorienting.” Other rageful commenters wrote similarly angry notes on Momofuku Goods’ Instagram, denouncing Chang and pledging to boycott his products.

Momofuku acquired rights for “chile crunch” in 2023 from Denver company Chile Colonial, which had hit Momofuku itself with legal action at the time. Momofuku also applied for rights over “chili crunch” in late March of this year. “When we created our product, we wanted a name we could own and intentionally picked ‘Chili Crunch’ to further differentiate it from the broader chili crisp category,” a spokesperson wrote in an email to the LA Times.

Days after Momofuku’s cease and desists went public, Fly by Jing, a popular chili crisp company owned by Jing Gao, resubmitted trademark requests for the terms “Sichuan Chili Crisp” and “Chengdu Crunch,” despite having been denied trademarks for the names in 2019. In an email to Bon Appétit, Gao explained that Fly by Jing’s lawyers had advised reopening the trademark applications to “safeguard” against future legal action from other companies. Days after applying, Fly by Jing withdrew its request. “In light of the events of the last two days, however, we now believe that there’s been enough awareness raised about the descriptive nature of the term that the USPTO will reconsider the chili/chile crunch trademarks,” Gao wrote.

Some of the seven companies that received Momofuku’s letters have acquiesced to its demands to stop using the phrases on their labels and marketing materials, though they are not obligated to change their recipe or discontinue their product. Other small companies are standing their ground. Michele Tew’s Homiah, which makes a “Sambal Chile Crunch” and received a cease and desist from Momofuku on March 18, won’t be changing its name—for now. “I’m going to chance it and see how it goes,” Tew told the New York Times.

The market for chili crisps has boomed in recent years, with many new players at grocery stores all sporting different names. How might it all go for the small companies standing up to Momofuku? And how far could Momofuku take its chili crunch war? “A single trademark litigation could bankrupt a company,” says Hamutal Lieberman, a lawyer who leads the trademark group at Helbraun Levey, a law firm focused on the food, beverage, and hospitality space. With Momofuku’s existing trademark rights, it could be a “slam dunk” for the company, she adds. We spoke to Lieberman to learn more.

This interview has been lightly edited for clarity.

Why would Momofuku pursue this kind of legal action against smaller companies, especially for a trademark of a condiment that is very popular?

The answer is clear: It's to avoid dilution of their brand. If a brand allows other users to use one of its registered trademarks, they’re essentially giving up their rights to the exclusivity of that name. In this case Momofuku does have a registered trademark for one of the spellings of chile crunch—with an “e.”

Companies pour so much money into branding and marketing and product development, that allowing infringers to use the name and dilute the brand is just a waste of resources. If a company has decided to register a product name, it means that there's something unique about it. There is a lot of profitability behind it. As a registered owner of a trademark, they’re obligated to police their brand rights; if they don't, nobody else is going to do it for them.

For something like chili crunch that refers to a centuries-old condiment, what does a company have to show to the patent office to gain a trademarked name? Why should Momofuku get exclusive rights over this translation of the original Chinese phrase?

You have to show what's called distinctiveness, meaning that the name is not just merely descriptive of the elements of the product. A company is usually going to have to show continuous use of the name for five years at a minimum. Here, it's interesting because, as you mentioned, the word crunch is what tips the scales toward distinctiveness versus generic and descriptive.

Are there considerations for cultural sensitivity in the trademarking process? How much does the US Patent and Trademark office understand the cultural differences of chili crisp versus chili crunch?

It’s interesting because we don’t know. They’re humans; they’re not computers. That being said, the trademark office has exposure to the internet. The trademark office has the ability to do World Wide Web searches and cite different examples of use, relating to generic names or cultural dishes. I mean, it happens all the time, where they'll pull examples of, “This food or this dish has been used for centuries, and therefore we're deeming it generic.”

Fly by Jing applied for trademarks over the terms “Sichuan Chili Crisp” and “Chengdu Crunch” in 2019, but the trademarks were denied at that time. Why would those trademarks be denied while Momofuku’s went through?

We have to remember that there are humans making these decisions. So there's an element here of subjectivity. Unfortunately, we would love there to be a standard set of rules, but there's got to be somebody making a call at the end. So, obviously, human error is always an option. I would imagine that they were denied because they were not able to show that the use of this—that the trademark—was easily distinguishable or distinctive from any other brand that was using it.

Does Momofuku's existing trademark over "chile crunch" give it ownership over "Chili Crunch"—with an i—even though the latter trademark is still pending?

While Momofuku’s trademark is for “chile crunch,” this trademark protects against any marks that are considered “confusingly similar,” as the patent office puts it. The analysis for whether two marks are “confusingly similar” usually focuses on whether two marks look the same and sound the same, and if the goods or services are similar. While Momofuku may not yet own the rights to “chili crunch,” they have a very strong case for excluding others from using it based on the argument that it is confusingly similar to their registered trademark “chile crunch.”

Would this public outcry affect the chances of the pending application being granted by the trademark office?

The US Patent and Trademark Office does not take into consideration the general sentiments of the public for the purpose of determining whether the mark is registrable. However, there is a 30-day window following the USPTO’s review of the application that allows any member of the public to oppose the registration if they believe that the registration of the trademark would hurt their brand. As such, the public outcry may manifest during their opposition period, but the opposers must make bona fide arguments to support the opposition.

Have there been any other notable cases like this in the food world?

In 2016 Starbucks brought a lawsuit against New York–based Coffee Culture Cafe's parent company for selling a drink called “Freddoccino.” Starbucks alleged that Freddoccino appeared similar to its Frappuccino, and the structure of its name was similar enough to cause confusion and diminish its brand equity. Starbucks had trademarked the term “Frappuccino” and also alleged that Coffee Culture Cafe created deceptive packaging that wrongly suggested that “Freddoccino” is a trademarked term. (Editor’s note: Obsidian Group, Coffee Culture Cafe’s parent company, renamed the drink “Freddo,” but as of 2022 the case still hasn’t been resolved.)

How likely is it that Momofuku would move forward with litigation against any of these smaller brands?

It’s unlikely that they're going to go up against all of them, as there’s a cost-benefit analysis to make here, but they may go up against the largest company just to make an example of them in the hope of creating deterrence to other brands in the future. If this is a popular and lucrative product, it's in their best interest to set a precedent here and enforce their rights.

If this were to actually go to court, how long would it take to resolve?

It would depend on what state, but in New York it would definitely take at least a year.

And what would it mean for the small businesses being pursued?

The defendants in this matter could be spending easily up to $100,000 or more. And the problem also is, it’s not just the litigation costs; if they lose, which, you know, could happen as long as Momofuku has a registered trademark and can show that these brands have been using a confusingly similar mark after Momofuku obtained this registration, then the damages include disgorgement of profits. That means that the defendant would have to turn over every dollar that they ever made using the infringing brand mark. They also have to pay for the other side's attorney’s fees, which isn't going to be cheap.

Is this kind of legal action worth it for Momofuku considering the cost it seems to be having on the brand's reputation?

​​Reputational harm ebbs and flows. Unfortunately, even in dealing with these types of situations, the public forgets. Yes, public backlash is always a consideration, but the chances that people are going to boycott Momofuku on a grand long-term scale are very small. So I would say, from a litigation perspective, Momofuku is thinking, “How do we keep this as the only chili crunch product on the market because that's what's filling our pockets.”

Originally Appeared on Bon Appétit

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