David Chang Issues C&Ds Over ‘Chile Crunch’ Products, Then Apologizes And Promises To Stop

While it doesn't happen nearly as often as I'd like, it is quite satisfying when a trademark bully is forced to walk back their bullying ways as a result of a public backlash. If you don't do a lot of your own cooking, particularly cooking Asian foods, you may not be familiar with chili crisp. Somewhat similar to garlic chili paste, chili crisp is a crunchier version of the condiment made with dried and fried chilis and garlic. Oh, and it's absolutely awesome and goes on a ton of things. It regularly makes its way onto my eggs for breakfast, for instance.

It's also been around for a long, long time and goes by a variety of name variations. One of those is chili crunch", or chile crunch". Now, a company called Chile Colonial, LLC had a trademark for chile crunch" registered with the USPTO somehow. I would argue that the term is both descriptive in nature and also in such widespread common use so as to be invalid as a trademark to begin with, but the USPTO did what it does far too often and granted it anyway. Then famed chef David Chang's company, Momofuku, acquired the trademark from the company as part of a lawsuit settlement in 2023 and then applied for a mark on the variant chili crunch."

And then the threat letters from Momofuku started going out to small makers of the condiment using those terms, almost all of which were headed up by Asian-Americans.

Michelle Tew, founder of the Malaysian food brandHomiah, 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".

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.

Then other small shops began chiming in about their own threat letters they'd received, almost universally expressing disappointment that a member of the Asian-American community was attempting to lock up this specific cultural term for its own and threaten others over it. The whole thing got a ton of press coverage, and the public and community in general all seemed to be aligned against Chang and Momofuku. Press coverage featured trademark experts that properly labeled this whole thing as a classic example of trademark bullying.

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.

Well, it took a couple of weeks, but it appears all of that public backlash convinced Chang to stand down and apologize for this whole fiasco. His apology, for what it's worth, is a fairly good one.

First and foremost, I want to apologize to everyone in the AAPI community who's been hurt or feels like I've marginalized them or put a ceiling on them by our actions," began Chang.

He continued: I spent the greater part of my adult life trying to bring light to Asian food, Asian American food, Asian identity, what it means to be Asian American. I understand why people are upset and I'm truly sorry."

But the most important thing Chang stated was a promise to simply not enforce the trademark moving forward. And if he follows through on that, there is simply no reason to have the trademark at all. Non-enforcement would lead to it becoming generic. Given that it's already descriptive and I don't believe for a second it would survive any actual trademark infringement trial, this whole thing renders the trademark useless.

So maybe the real apology would be Chang invalidating and giving up his own trademark.