How Did Momofuku Even Trademark Chili Crunch at All? An IP Lawyer Explains

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 bonafide 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.”