5+ yrs ago (but less than, say, 10 yrs ago). I am aware that he has acknowledged his temper.
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He apologises to build the myth/narrative of a penitent bastard. He doesnât "remember " actual deeds.
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100% agree with @cookiemonster
As of today the application for chili crisp is still alive in the TESS database also interestingly enough fly by jing tried to mark this term in the past but failed to respond to an office action. Itâs likely they didnât hire an attorney the first time to do it as the correpondence email is hello@theirdomain
@hppzz I think in this case actions speak louder than words. At best her post speaks from a place of uninformed ignorance with a large helping of progressive pro little guy buzzwords to quell her audiencesâ angst or at worst the company knew what they were doing but got caught with their hands in the cookie jar while throwing shade at momofuku for similar anti-competitive practices
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iâm sure thereâs some truth to what youâre saying.
PR wise momofuku still looks like the bad guy and FBJ gets out relatively unscathed.
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To me, if thereâs an asshole in this whole brouhaha, itâs Jing Gao, giving Momofuku shit for doing more successfully exactly what sheâs doing and playing the little guy when sheâs heading down the exact same road, raising millions in investor capital to pursue national distribution of her product (which is neither crisp nor crunchy).
Though sheâs getting so much free publicity I canât blame her.
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Also as a business owner I get what both momofuku and jing are trying to do. Who wouldnât want a monopoly and leverage over an entire class of products and competing businesses? Itâs like business 101 you increase your product and IP value, broaden your market share through exclusivity, and reduce competition, thatâs every businessâ dream.
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Getting a trademark on âchili / chile crunchâ doesnât give Momofuku a monopoly on the chili crisp market. It just means nobody else can use the name. Lao Gan Ma can go on calling their original âchili crisp,â as can Fly By Jing, Trader Joeâs can call theirs âcrunchy chili onion,â etc.
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Long-time lurker, first time poster/account creator here. Iâm seeing a lot of misinformation/disinformation here. My intent is to try to add context to help people make an informed decision about what to support.
Disclaimers:
- The materials provided below are informational and should not be relied upon as legal advice.
- I am not a huge Dave Chang supporter â just want to make that VERY clear. The Momofuku packaged noodles just suck. There are so many better alternatives. The chili crunch is REALLY not for me. I think it has too much of a carbonized taste and tends to be too bitter. The restaurants are hit or miss for me, but when they hit they really hit.
[Quick sidebar: I find Noodle Bar and Fuku to be fâing awful, Ssam Bar and Ko to be whatever, but saw Kawi and Nishi as one-of-a-kind⌠of course Noodle Bar and Fuku are the only things remaining now. Momofukuâs pivot into a CPG company closing the only restaurants I really loved from the group probably hurt me specifically more than anyone, if anything.]
Fact Pattern:
The Washington Post wrote the first really well-informed article on this issue from a legal standpoint that went out yesterday. I thought Jenn Harris from the LA Times did a solid job, as well, but lacked the nuance/legal knowledge and was more of an editorial.
Issues:
First, and foremost, credit to @robert for shedding light on the legal and for being vigilant about the way information is traveling about this issue.
Is it actually David Changâs fault, or is he just the most visible person?
Momofuku has received significant investment from various partners etc. Most companies that receive outside capital investment have a board of directors. This Board ultimately signs off on these types of legal actions as they can get very expensive and have myriad consequences. Chang might have a board seat, but I doubt these C&D letters are his doing, and, importantly, that he even has the authority to call the lawyers off.
So why sue small businesses over a trademark?
The first, and most important thing I want people to know is that this is not a lawsuit. Itâs a cease-and-desist demand letter. Thatâs it.
In a trademark action such as this one, itâs likely a C&D demand to stop calling it chili crunch and to call it something else in their packaging and outgoing marketing materials. It costs some money, but splitting hairs over crunch vs. crisp (and weâll get to this) doesnât seem like a battle worth having. Important to note: Companies that wonât receive a C&D in this action include Lao Gan Ma or ANY other business that calls it chili crisp instead of chili crunch.
I read somewhere that the deadline to comply was 90 days, which I find quite generous and understanding of the costs of compliance. Nothing about how this was handled suggests to me that Momofuku and their lawyers are trying to put anyone out of business.
The main reason these letters went out in the first place is that in order to hold a trademark, you have to defend the trademark and maintain its distinctiveness. That means you need to send C&D letters to keep it, or they could lose the trademark and, this is important, thereâs a [small] chance it could be claimed by someone else.
Why is Momofuku so insistent on keeping the trademark for a generic term?
Ay, hereâs the rub: Momofuku themselves were sued and settled out of court with a company that owned the trademark for chile crunch. The owner of that company talked about how expensive it was to protect the mark (they were a small business with a local following) â so if anything Momofuku paid the small business owner to buy the trademark and took on the future costs of enforcement. So itâs important to note, these types of actions only proceed with consequence if the term is not generic.
Itâs important to note that for the purposes of enforcement here, âchile crunchâ and âchili crunchâ are the same thing. So all the people freaking out over an âiâ vs. an âeâ need to know â someone else sued Momofuku holding the chile crunch trademark for chili crunch, it worked, and now Momofuku has to turn around and do the same, while applying for chili crunch to cover their bases.
Thereâs an argument to be made that the term chili crunch has become genericized, but as the Washington Post article mentioned, Momofuku has been operating while using the chile crunch trademark for five years and it will likely become incontestable on those grounds.
So what else can these smaller companies do?
Just call it chili crisp, or work something out with Momofuku to get a license. It looks like Momofuku is open to granting licenses based on how they handled the chile crunch business in Colorado. But hereâs the fun part: The loudest complainers are⌠not small companies.
What do you mean?
It was really revealing that in the same Guardian article everyone keeps linking to and posting screenshots of, there was a relationship revealed between the primary complainant in the article Houmiah, as being advised and received investment from Jing Gao. That name might seem familiar: Itâs the Fly By Jing founder and CEO, a company that has received more than $12 million in Series B funding from a large growth fund.
[Sidebar/ Bias Disclaimer: I mostly know them as the company that makes my least favorite product mentioned in this entire article, a cynical aping of Lao Gan Ma that somehow manages to be more expensive and inferior in taste and quality but with Gen Z-friendly packaging.]
Gao filed for the trademark for Sichuan chili crisp which the Guardian article states was rejected for being descriptive, and the trademark application was abandoned in 2020. Fly By Jing Inc. then re-filed for the Sichuan Chili Crisp trademark on 4/3/2024, a day before the Guardian article was published. According to Gao, they are withdrawing their application â something tells me Fly By Jingâs lawyers love billing for filling out doomed trademark applications. Anyway, I find calling âSichuan chili crispâ descriptive to be a failure on the USPTOâs part â in no way does the word âcrispâ or âcrunchâ describe anything inside a bottle of Fly By Jing. Sichuan chili mush, maybe. Iâm sorry, Iâll get back on track.
The other company mentioned in the Guardian article was Mila, a company which marketed their product as chili crisp [itâs still cached on their Amazon listing page as Mila Chili Crisp, even though theyâve now taken down the listing]. Theyâre backed by actor Simu Liu and an eye-watering $21M in investment in 2023 alone according to their Crunchbase profile. Not a small business.
So why are these bigger companies complaining?
Well, if you look at the articles, Gao canât seem to turn down an interview request about this matter and has used this as an opportunity to try to build a platform as a thought-leader among AAPIs. She is everything the media loves: A tough, female AAPI leader who wonât back down from a male âbullyâ in David Chang. But I tend to question her methods and intentions.
I really think the worst actor in all of this is Fly By Jing; they seem relatively unscathed from this incident, as one of the largest equity fund-backed companies in the space they get to hide behind a smaller company they invest in and masquerade as looking out for small businesses while hypocritically repeatedly filing for trademarks themselves â and not just any trademark, the words âSichuan chili crispâ in a category that was made famous by Lao Gan Ma Chili Crisp, the original and my (and many peoplesâ) favorite in the category.
I found her assertion that she was applying to âprotect the markâ from people like Chang to be not only disingenuous but legally incorrect. If a mark is descriptive, it requires no protection because it cannot have an owner. Itâs this statement that I find extremely arrogant on her part to think that people werenât actually going to look this simple fact up and see through that. Itâs this that leads me to conclude that the only reason weâre talking about this right now is because Fly By Jing and, to a lesser degree, Mila, wanted to extract market share from Momofuku Chili Crunch.
Theyâre doing it by weaponizing the AAPI community (whether unwittingly or intentionally), just like the exploitative way in which theyâve marketed their products to us, and are the real threat to the mom-and-pop chili crunch purveyors who make actually good stuff.
So you want to keep small businesses alive? Support them by buying their stuff. Theyâre barely getting any press through this cycle because itâs being swallowed up by Houmiah via Fly By Jing and Mila. I donât think either of those companies or Momofuku need your money.
P.S. My chili crisp consumption habits are basically one jar of Lao Gan Ma at all times and a new one I try every month or so. Momofuku is near the bottom, but Fly By Jing is through the floor. It is despicable how bad and cynical that product is. My favorite by far is the Umamei and Umamei Braindead collab if you can get your hands on that, probably one of the most delicious chili oils + crisps Iâve ever had. I think that oneâs made by a famous chef, too, but it feels a lot smaller batch and sells out quickly.
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Welcome to FTC!!! (and might I add that you composed a heck of a fine first post!)
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Nice write up @foodielawyer. Good choice for a handle on FTC
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Thanks for the pro bono brief! I agree with all your comments about the various chili crunch / crisp / oil products. Umamei is great. Boonâs another worthy one. My favorite is Lao Gan Ma mixed with an equal amount of good XO.
Also Majordomo in LA.
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does umamei actually come back in stock periodically???
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I didnât notice that everything was sold out.
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Without turning this into a whole guide: It does, VERY periodically, and when it does, it sells out faster than Taylor Swift tickets. I have a friend whoâs very tech savvy set up a bot to alert me when the stock changes and auto-purchases a couple jars + the XO for me, but I think itâs been a while since Iâve bought some. Either way I break it out for really special occasions, friends I care about or especially bad days when I need a lift.
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Iâve yet to try Majordomo but Iâve heard good things, bummed I didnât get to try the Majordomo Las Vegas before it closed. Iâve seen the criticisms of Majordomo with the common Chang complaints about how his food isnât authentic⌠which sidebar⌠One thing to note about the Momofuku group of restaurants that I always appreciated is that they tend to go out of their way to not be âauthenticâ.
I donât know if Chang has ever spoken to this on his podcast, but by creating a distinct spin on a dish (or say, a chili crunch as opposed to a chili crisp), he leaves the lane open for the original businesses. I always laughed at what he called bossam, this hulking pork shoulder that was nothing like the Korean dish and certainly, in my opinion, not an improvement over the Korean original by any stretch of the imagination. But by doing that he makes me want to go back to my favorite places that do Korean bossam, and I think thatâs the no-BS value of a lot of what Chang does. His stuff makes you talk about it, think about it, and then turn around and support the original immigrant businesses. Iâm kind of just realizing this as I type lol
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While I agree with most things written above, 90 days to turn around a branded item isnât as feasible or generous as you think it is. What of remaining stocks? Not the finished shipped products, but in many cases print items are purchased in the highest manageable increments that fits storage, and in consideration of bulk rate price breakdowns. Those smaller companies working on very slim margins may indeed have a larger financial burden for the sake of an arbitrary compliance to what seems like the Chang Goliath.
Licensing options yes. But that requires dialogue with various stakeholders without being nasty. The food world is small and connected. All of this could have been handled in a better way with phone calls and direct conversations. The history of said individual, no longer CEO has been that of a bully, and never much as a diplomat so it is hard to give him any benefit of the doubt. As Founder of the Momofuku group, he definitely has strong influence even if itâs not final decision maker. The silence speaks volumes.
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Ah yes, I should have been clear, generally these types of demand letters say things like âimmediatelyâ or within 7-14 days or some ridiculous âweâre going to sue youâ turnaround time like that. So I saw it as an actual good faith effort to give the businesses time to turn things around or work something out as opposed to a malicious âweâre going to sue you and force you to hire lawyers and give you minimum notice,â which is generally the intent in more competitive spaces.
EDIT: To clarify â technically it is a businessâs fault for not looking up that there is a trademark for chili crunch, and that includes Momofuku when THEY got sued over it. Now in reality, obviously this type of research is fraught with all kinds of legal access problems for small business owners (the capitalized information asymmetry that defines our profession and allows me to amass a chili crisp collection* EDIT: I said chili crunch, edited it to crisp. ew I do not have a chili crunch collection).
But itâs probable that itâs cheaper to relabel existing product than it is to hire lawyers to fight this. Thatâs the thing â the less product you have / smaller your footprint is, hopefully the easier this is. Operations that have a need to label enough back-stock and purchase enough new labels to justify hiring a lawyer and litigating this out, arenât small operations⌠or even doing business in a smart way because thatâs an insane amount of back-stock of $10-$20 retail jars of chili crisp.
I fully understand personal antipathy toward David Chang and Changâs reputation as a real SOB to deal with, but I also see that beating this dead horse is dominating the discussion over things like basic understanding of the legal process (that can be helpful to other small businesses), what other small businesses to support with our money, who else is really benefitting from this, what does this mean for my favorite small batch chili crisp purveyor, etc.
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I believe the lawyers who are running the trademark show would tell you the C&D has to be a written notice. I think Momofuku can be and apparently are being reasonable in giving people time to change their labels and allowing them to sell existing stock.
I donât know what the deal is with people being so eager to hate public figures and rewriting any news to suit that purpose. Changâs silence on this issue seems like the behavior of a responsible adult who doesnât know shit about trademark law or presume to tell his companyâs lawyers, accountants, and executives how to do their jobs. Heâs got a TV show to get on the air and a family.
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Having not seen the actual verbiage of the C&D, we do not know of the actual terms for allowing for the sale of existing stock. It could also be stipulated to either collect or destroy in that allotted time.
I disagree. In media, one would have a PR team to get ahead of the story and control the narrative. Issuing a C&D is what they hired the lawyers for. Establishing a dialogue doesnât require lawyers, unless to safeguard for anti-trust issues. As a media âbrandâ, this picks up traction in a negative light. As much as Chang has hired legal to do their jobs, heâs got some incompetent hired PR not doing theirs. For the very reason that heâs a media figure, for a media company he owns/runs, he ought to address this rather than keep silent.
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You continue to refer to Momofuku as if it were a sole proprietorship. As I said, youâre rewriting the news to fit your hate campaign. Do you have anything positive to contribute to this board?