Lawsuit | KRG Hospitality

What’s Going on with Chili Crisp?

by David Klemt

I’m not convinced that AI platforms know much about chili crisp or human hands.

UPDATE (April 15, 2024): David Chang has reportedly stated that Momofuku will no longer enforce the “Chile Crunch” trademark. He made the statement on his The Dave Chang Show podcast.

A legal battle over a chili crisp trademark is spilling into the public arena, and people are taking sides and making their feelings known on social media.

More specifically, Momofuku appears to be defending its “Chile Crunch” and “Chili Crunch” trademarks vigorously. To say some people aren’t exactly fans of this legal news is an understatement.

To provide context for the unfamiliar, Momofuku is a restaurant group first established in 2004 by David Chang. By 2019, the group had expanded, opening 20 venues. In 2020, Momofuku Goods began selling some of its culinary products in the retail space.

Among the products carrying the Momofuku name and peach logo is Chili Crunch. This is the brand’s version of chili crisp, a condiment consisting of oil, fried chili pepper, and other elements, such as garlic and onion (and other peppers).

From what I can find, it’s widely accepted that chili crisp originated in China, and has been around for centuries. How many centuries? I have no idea.

However, I can say with certainty that Momofuku has owned the “chile crunch” trademark since 2023. And I know that Momofuku acquired the rights to that trademark from Chile Colonial, LLC. That acquisition was part of a settlement.

Interestingly, Chile Colonial took action against Momofuku last year for trademark infringement for using the product name Chile Crunch. The former had been selling its Chile Crunch since 2008, and registered the trademark in 2015.

Now, it’s Momofuku, who apparently licenses the trademark to others, taking action to defend the trademark. Toward the end of last month, the company applied to trademark “chili crunch.”

Cease and Desist

As several outlets have reported, a number of chili crisp producers have received cease-and-desist letters.

Eater has reported that one producer, Homiah, received such a letter after they renamed their Crispy Sambal product to Sambal Chili Crunch.

The letter reads, in part, “Momofuku trusts that Homiah did not adopt the CHILI CRUNCH mark in bad faith or with an intent to create confusion. But because trademark law requires brand owners to police use of their trademarks—and because Momofuku is concerned that consumers may actually be confused here—we write to request Homiah’s cooperation.”

One element of the requested cooperation is that Homiah stop using the name Sambal Chili Crunch within 90 days.

It seems that it hasn’t taken long for these legal requests to find their way to the public at large. And, yes, sides have been taken.

Sifting through the comments on Eater’s Instagram post about this situation paints a vivid, albeit not entirely unexpected, picture.

View this post on Instagram

A post shared by Eater (@eater)

“This is a great way to ensure that I’ll never buy Chang’s version,” reads one comment.

“If no one owns RANCH, no one should own this,” says another Instagram user.

“No, this is absurd. Heinz didn’t trademark ketchup, they trademarked Heinz, this is so ridiculous. He can trademark momofuko and the peach logo. But this is so stupid,” is a comment with nearly 400 likes.

Finally, there’s this simple statement: “You can’t trademark culture.”

Los Angeles Times columnist Jenn Harris would agree with that last comment. Addressing Momofuku’s legal actions, she writes, “I reject the notion that someone could exclusively own something so ingrained in my culture, a food I consider an intrinsic part of my identity.” You can, and should, read her column here.

Must Defend

There’s more at play here when it comes to trademarks.

Speaking in incredibly general terms—and without providing any legal advice—once a trademark has been granted, the owner must defend it. Failing to do so, which includes filing variations and taking action against others, can result in the loss of the rights associated with the trademark.

So, on one finger on one hand, Momofuku must defend “chile crunch” and, if granted, “chili crunch,” if the company wants to retain their trademark rights. On another, does the blame lie with the United States Patent and Trademark Office (USPTO) for granting the trademark in the first place?

Going deeper, should Momofuku have negotiated different settlement terms that wouldn’t preclude others from calling their chili crisp products Chile Crunch? I’m not remotely qualified to speak on the legal dispute between Chile Colonial, LLC, and Momofuku, so I can’t even begin to form an opinion. If the settlement was “pricey,” I understand Momofuku being sensitive about other products potentially cutting into their sales.

Per reporting, Susan Hojel, the owner of Chile Colonial, has said she was “going broke” defending the Chile Crunch trademark. Many of the cease-and-desist letters were going to large companies. In that sense, Hojel saw herself in the role of David, going after corporate Goliaths.

Now, however, the public views David Chang and Momofuku as Goliath, attempting to crush noble Davids. Therefore, I have to wonder if the real issue is public perception, not legality. After all, I’ve seen the label “trademark bully” affixed not to just Momofuku but Chang as well.

Worth It?

I don’t know what the answer is for the questions swirling around this legal fight. All I can do is wonder if defending this trademark is worth the backlash.

At the moment, we’re seeing comments expressing disappointment and disdain. What happens if those comments manifest in damaged brand perception?

Put another way, there’s defending your brand…and there’s defending your brand.

Image: Shutterstock. Disclaimer: This image was generated by an Artificial Intelligence (AI) system.

Can You Fire Staff for Refusing Vaccine?

by David Klemt

Can an employer terminate a staff member’s employment for refusing the Covid-19 vaccine? Current court cases seek an answer to that question.

Conversely, there are bills up for consideration in some states that aim to ban vaccine mandates.

Therefore, the current answer to the question of whether employer vaccine mandates are legal isn’t clear, yet.

It’s also important to note that this question is up for legal examination in Canada and America.

Are Employers Really Mandating Vaccines?

Of course. Well, some are. And it’s bound to continue until the question has been tested in court.

Looking at Canada, Ontario’s Ministry of Labour says employers can, in fact, make vaccines mandatory. They can also (for now, at least) demand proof of vaccination from their employees. Failing to answer the question or lying about can result in an employee losing their job.

However, the ministry acknowledges that legal and ethical issues come hand in hand with blanket vaccination mandates.

In America, the issue is no less thorny, to put it mildly.

Per a survey by Arizona State University and the Rockefeller Foundation, almost 90 percent of employers in the USA (and UK) have plans to “encourage or require vaccination for employees.”

Encouraging, of course, stands in stark contrast to requiring in a legal, ethical and moral sense.

That same survey suggests that most US employers—two-thirds—plan to use vaccination incentives rather than mandates. However, 44 percent say they’ll implement mandates if incentives don’t work. Just one-third of survey respondents say they don’t intend to require vaccinations as a term of employment.

Legal Challenges

Vaccine requirements and credentials (“vaccine passports”) have been banned in Arizona, Florida, Idaho, Montana, Texas and South Dakota.

Bills have been introduced in at least half of American states that seek to “limit mandatory COVID-19 vaccines,” per the National Conference of State Legislatures.

Lawsuits have been filed by workers in various industries in several states, including New Mexico and California.

It’s likely just a matter of time until the Supreme Court of the United States is at least asked to settle the matter of vaccine mandates.

Currently, attorneys and agencies say that employers need to inform employees of the consequences for refusing Covid-19 vaccination, including loss of employment; put a vaccination policy in place and communicate it with all employees; and include religious and medical exemptions.

That said, this matter is a long way from settled.

Could vs. Should

One thing is clear: It’s not clear yet whether employers can terminate employees for refusing vaccination. We can expect a flurry of lawsuits either way.

However, it’s important that operators realize this isn’t solely a legal question. This is in no small part a leadership question, and it’s a tough one.

As the saying goes, just because you can, doesn’t mean you should.

Operators must consider the ramifications of vaccine mandates. Moving forward, some guests may only support businesses that require vaccination for staff. Conversely, some guests may find such a requirement discriminatory and offensive, and they may boycott businesses with vaccine mandates.

It’s a difficult position for operators and staff. Our industry puts employees and the public in direct, close contact with each other. Team members are likewise in very close quarters. Close interactions for prolonged periods can spread any number of viruses, not just Covid-19.

The instinct to protect staff, their family and friends, and the public is common among operators. The past twelve-plus months have strengthened that resolve.

Incentivizing Instead

Requiring vaccination may exacerbate the current labor shortage.

Yes, there are some employees and potential new hires who will feel more comfortable knowing their coworkers have been vaccinated. However, there are also people who will refuse to work for an employer who requires vaccination. A mandate could damage recruiting severely as word gets around.

It’s reasonable to suggest that operators are best off implementing a vaccination incentive program rather than a mandate. Most people would likely agree that encouragement rather than requirement, at least regarding this topic, shows greater emotional intelligence, a cornerstone of leadership.

The CEO of the Cosmopolitan of Las Vegas reportedly hit their minimum goal of an 80-percent vaccination rate among staff last week. The resort’s incentive program offered bonus payments (among other incentives) for vaccinated employees set up in tiers:

60 Percent Vaccination Rate: $50
70 Percent Vaccination Rate: $100
80 Percent Vaccination Rate: $250
90 Percent Vaccination Rate: $350
100 Percent Vaccination Rate: $500

That program helped the company hit their goal in just a few weeks. Operators can certainly use the Cosmo as a model for encouraging vaccinations instead of requiring them. Ultimately, the choice is up to the individual operator. It isn’t an easy one.

Disclaimer

This content is for informational purposes only, and should not be used as legal or other advice. This article does not constitute legal advice, nor does any information constitute a comprehensive or complete statement of the matters discussed or the law. This information is of a general nature and does not address the circumstances of a specific individual or entity. The reader of this information alone assumes the sole responsibility of evaluating the merits and risks associated with the use of any information before making any decisions based on such information.

Image: Braňo on Unsplash