David Chang’s Chili Crunch and the perils of policing trademarks

Celebrity chef David Chang learned the hard way that “just because you can doesn’t mean you should.” Chang, founder of Momofuku and maker of CHILI CRUNCH sent cease and desist letters to other producers using the term “chili crunch” on their labels in early April. However, by April 12, he was forced to about-face, abandon the CHILI CRUNCH mark, and promise to forgo enforcement of the CHILI CRUNCH mark in perpetuity. Chang’s debacle serves as a cautionary reminder that legal decisions are business decisions. 

Chang’s journey with the CHILI CRUNCH trademark underscores the interplay between legal rights and business strategy in a culturally conscious consumer landscape. Chang’s pursuit and subsequent surrender of the CHILI CRUNCH mark shed light on broader issues surrounding trademark policy and cultural appropriation. His decision to stop enforcing the mark highlights the impact that collective action can have within an industry. Momofuku is now relying on competitors to embrace the term “chili crunch” to reinforce its status as a generic descriptor and prevent future attempts at appropriation.

Spotlight on trademark policy

Chang’s back-and-forth illustrates the complex terrain of trademark law and policy. Momofuku’s trademark application reflected a strategic move to create a brand identity and product exclusivity. Chang was no doubt following the advice of counsel when Momofuku began dispatching cease and desist letters to other makers of “chili crunch.” The requirement to prove inherent distinctiveness posed a significant challenge, as the term “chili crunch” is deeply embedded in the culinary vernacular as a descriptive term rather than a brand identifier. Momofuku knew that, to obtain the CHILI CRUNCH mark, it would have to prove that the term does not merely describe the contents of the jar but that it had become “inherently distinctive” through Momofuku’s commercial use of the term. 

The backlash against Chang’s enforcement efforts underscores the policies that underlie trademark rights and the tension between trademark rights and reputational risk. Chang’s attempted monopolization of the term in service of the “inherent distinctiveness” requirement caused widespread backlash. Critics argued that “chili crunch” and “chili crisp” are common synonyms for a Chinese-style pepper sauce containing crispy pepper flakes and other seasonings. Momofuku CEO Marguerite Mariscal said on the April 12 episode of Chang’s podcast, “The Dave Chang Show,” that “[a]s a business, we’re taking the risk that by not enforcing it, someone could come along . . . say we’re not enforcing it, and therefore, they should own the mark.”

Cultural commodification and trademark genericide

Chang’s CHILI CRUNCH fiasco reveals deeper issues of cultural commodification and trademark genericide. By attempting to monopolize a term deeply rooted in Asian culinary traditions, Chang inadvertently triggered accusations of cultural appropriation and corporate bullying. The condiment has existed in China since at least 1790 when a recipe for a fried chili oil condiment appeared in The Harmonious Cauldron. Today, almost every restaurant in China and Taiwan makes a house chili oil. Tao Huabi began bottling and selling Lao Gan Ma in 1997. The product made her a billionaire and is responsible for the spread of chili crisp’s popularity around the globe. 

Chang’s mistake was not bottling and selling chili crunch, rather, he sought to prevent anyone else from using CHILI CRUNCH. He was accused of bullying small businesses and betraying other Asian entrepreneurs by threatening them with legal action instead of encouraging their communal success. The case is a stark reminder of the reputational considerations associated with trademark enforcement. Entrepreneurs should consider the broader cultural implications of their legal decisions. Chang hopes that by ceasing enforcement of the CHILI CRUNCH mark, he can hasten the genericide of the term and render it ineligible for trademark protection by his competitors.

Conclusion

Chang’s experience with the CHILI CRUNCH trademark is a lesson for entrepreneurs to not blindly follow counsel’s advice, which risks being seen as aggressive and insensitive. Instead, businesses should remember the cultural and human elements underlying their products and be judicious when threatening legal action. Cease and desist letters are not confidential. 

Chang’s journey underscores the importance of balancing intellectual property rights with respect for cultural heritage. Winning in a court of law is useless if you lose in the court of public opinion. Chang’s story serves as a poignant reminder that reputational considerations should always accompany legal maneuvers. Just because you can doesn’t mean you should.