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Crispy chili oil makers like Caleb Wang and Jen Liao, right, are feeling the
crunch from Chang, left, whose company is trying to trademark ‘chili crunch’.
Composite: Getty Images, Homiah, Mila
View image in fullscreen
Crispy chili oil makers like Caleb Wang and Jen Liao, right, are feeling the
crunch from Chang, left, whose company is trying to trademark ‘chili crunch’.
Composite: Getty Images, Homiah, Mila
Food



‘TRADEMARK BULLY’: MOMOFUKU TURNS UP HEAT ON OTHERS SELLING ‘CHILI CRUNCH’

David Chang’s food empire is sending cease-and-desists in what some say is an
effort to dominate the spicy condiment’s market


Nina Roberts in New York
Thu 4 Apr 2024 15.00 CESTLast modified on Thu 4 Apr 2024 16.46 CEST
Share



Across the US, a crunchy, crispy chili oil is being drizzled over dumplings,
noodles, eggs, pizza – even ice cream. Once an almost secret sauce, this deep
red condiment made with bits of dry chilis, crispy fried garlic, and often with
sesame seeds and Sichuan pepper, has its roots in China. Now dozens of brands
produce versions as this umami bomb goes mainstream.

But all is not well in the condiments aisle. Momofuku, the food empire founded
by celebrity chef David Chang, is attempting to seize control of the market – or
at least the name. The company has sent cease-and-desist letters to companies
using the term “chili crunch” and “chile crunch” on their condiment labels and
is trying to trademark “chili crunch” with the US Patent and Trademark Office
(USPTO).


What makes Korean gochujang any different from other chilli pastes?
Read more

Michelle Tew, founder of the Malaysian food brand Homiah, based in New York
City, is one of the letter recipients. It states that Momofuku is the “ … owner
of all trademark rights … ” for “chile crunch” and “chili crunch” (two different
spellings) and that her product, Homiah Sambal Chili Crunch, is a trademark
infringement.

Tew said her chili crunch is based on her Malaysian family’s recipe, where she
grew up. Momofuku is concerned that consumers might confuse a jar of Homiah
Sambal Chili Crunch, which has a colorful floral motif paper label, with a jar
of Momofuku Chili Crunch, which is minimalist with a hand-drawn font and no
paper label. Homiah has 90 days to cease the use of the “chili crunch
trademark”.

Each brand has its own recipe of the chili condiment, often calling it chili
oil, chili crisp, chili crunch, chili sauce, or a combination thereof; product
labels reflect the shared vernacular. But Momofuku is specifically targeting
those using the terms “chile crunch” and “chili crunch”.

Two of the biggest brands, Fly By Jing Sichuan Chili Crisp, launched by
entrepreneur and chef Jing Gao in 2018, and China’s condiment queen, Lao Gan Ma
Spicy Chili Crisp, are not in Momofuku’s crosshairs because they use “chili
crisp”, not “chili crunch”. But those who chose “crunch” over “crisp” or “oil”
for their product, are incensed.

As word spread of Momofuku’s cease-and-desist letters among food entrepreneurs
making the chili condiment, reactions ranged from fear and annoyance, to
disappointment and astonishment at the gall.

The company did not return requests for comment.

Tew described receiving the letter as “a punch in the gut”. Momfuku’s Chang, who
is of Korean descent, has helped to push Asian food forward into the mainstream,
she said. “If Kraft Heinz hit me up [with a cease-and-desist] it would have been
so distressing,” says Tew, “but the fact that it was Momofuku makes me feel
really, really sad.”

Seattle-based MìLà specializes in soup dumplings and also received a Momofuku
cease-and-desist letter. Caleb Wang, who grew up between Chicago and Shanghai,
recently revamped MìLà’s line of sauces with his co-owner and wife, Jen Liao.
Since they added a larger portion of crispy, crunchy fried garlic to their
previous recipe, giving an extra crunch, they named it MìLà Chili Crunch. It’s
packaged in a futuristic bottle styled on the curvy calabash gourd, sometimes
called húlu. “Our intent was to describe the product,” says Wang, noting that
“chili crunch” gives their customers a better understanding of the new condiment
than “chili crisp”.

Momofuku currently does not have the registered trademark for “chili crunch”,
but began the filing process with the USPTO on 29 March, which can often take a
year. To receive approval, it will have to prove that “chili crunch” is not
merely a description of the product inside the jar, but rather that “chili
crunch” has “distinctiveness through extensive use in commerce over many years”,
as described on the USPTO website.

Momofuku does own the trademark rights to “chile crunch”, registered with the
USPTO. Momofuku acquired “chile crunch” in 2023 from the Denver company Chile
Colonial, LLC as part of a legal settlement. Chile Colonial had taken legal
action against Momofuku for “trademark infringement, unfair competition”,
according to court documents. Chile Crunch is the brand name of a chili
condiment made by Chile Colonial, which has been on the market for more than a
decade. It’s a Mexican version of chili crisp, typically called “salsa macha” –
“chile” is “chili” in Spanish. Momofuku licenses the trademark to a “third
party”, according to its cease-and-desist letter.

> It feels like it’s not done with good intent, like potentially boxing out
> smaller competitors and trying to own a space that’s tough to own

Caleb Wang

Momofuku’s cease-and-desist letter states Momofuku has been “offering” its chili
crunch product since 2018, and jars of the chili crunch went on sale in 2020.
The letter also states that the chili crunch has “developed valuable common law
rights” to its “chili crunch” trademark. “Common law rights” is trademark law
lingo for a term, or name, not registered with the USPTO, but that has become
distinctive and famous over time. The proof Momofuku gives for its “chili
crunch” distinctiveness and fame, thus its common law rights, is quantified by
the product’s popularity, media coverage, Amazon reviews and its average 4.7
star reviews on its own website.

“The phrase that I would use to refer to Momofuku in this case, is a trademark
bully,” says Stephen Coates, the lawyer representing Homiah. “This is a clear
case of them picking on small businesses with a letter campaign hoping they’ll
cave because of the financial pressure.” If small businesses capitulate and omit
“chili crunch” from their labels, Momofuku’s product will appear more distinct
as it applies for the registered “chili crunch” trademark.

Momofuku Goods, the consumer goods arm of Momofuku, has the resources for a
trademark campaign, which can be expensive. It raised $17.5m in a Series A
funding round led by Siddhi Capital in March 2023 and an $11.5m funding round
led by Alliance Consumer Growth in September of the same year. In 2023, it made
$50m in sales, according to CEO Marguerite Zabar Mariscal. Many of the companies
Momofuku is targeting with cease-and-desist letters are one-, two-, three-person
operations; some have raised VC or private equity investment, but others are
bootstrapping, most with a revenue under $1m.

Several companies that received Momofuku’s cease-and-desist letter have
acquiesced to Momofuku’s demands, or intend to, fearing the expense and hassle
of a legal battle. Most of these companies did not want to talk to the Guardian
on the record about their trademark experience with Momofuku, for fear of
retaliation, retribution, or ill will from such a powerful, well-funded food
company.

The purpose of trademark law is to protect consumers from being duped by
counterfeit products and to protect business owners from being impersonated.
Many entrepreneurs who make a chili condiment feel the motivation behind
Momofuku’s trademark campaign is to stifle competition.

“It feels like it’s not done with good intent,” says Wang of MìLà about
Momofuku’s aggressive cease-and-desist letter campaign, “like potentially boxing
out smaller competitors and trying to own a space that’s tough to own.” Tew
concurs and says that if Momofuku really just wanted to protect its brand, they
could likely trademark “Momofuku Chili Crunch” v “chili crunch”.

Fly By Jing’s Gao is an advisor to Tew and investor in Homiah. Born in Chengdu,
Sichuan, Gao says that chili condiments have existed in China for a very long
time, and each family, restaurant, company and region has their own recipe and
nomenclature. Translating these various chili condiment types into English
word-for-word for the US consumer can be clunky, like “fragrant, spicy and
crisp”, for example, likely to leave a US consumer puzzled. Labels need to be
able to describe chili condiments for mainstream consumers, she said.

Gao was surprised to hear about Momofuku’s cease-and-desist letter campaign and
filing for trademark on multiple levels. Gao tried to register “Sichuan chili
crisp” as a trademark with the USPTO as it was the first chili crisp in the US
sourcing exclusively from Sichuan. It was rejected on the basis of the words
being descriptive. Gao is also disappointed by these recent developments,
recalling it wasn’t that long ago she was told by investors and retailers that
her business was too “niche”. She said she had a “rising tide lifts all boats”
attitude toward fellow AAPI food entrepreneurs, as more brands validate the
market. “The more people that are coming into the space,” says Gao, “is only
going to be better for all of us.”

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