Chili(e) crunch: inherently distinctive or merely descriptive?

David Chang’s food empire Momofuku has been in the news this week for sending cease and desist letters to other food brands, some of which are small businesses, who have used the term “chile crunch” or “chili crunch” on their products. The letters state that Momofuku is the “owner of all trademark rights” to both “chile crunch” and “chili crunch”, and that the brands’ use of these terms on their product labels is trademark infringement.

Momofuku acquired the trademark to “chile crunch” through a settlement with Chile Colonial LLC, which sells a Mexican chile crunch, in 2023. Momofuku does not currently own the trademark rights to “chili crunch”, but applied for a trademark with the United States Patent and Trademark Office at the end of March. To receive a trademark for “chili crunch”, Momofuku will need to demonstrate that “chili crunch” is “inherently distinctive” to their products, through “extensive use in commerce over many years”, and not merely descriptive.

Image Source: Louiie Victa via Eater

Chili crisps/oils/sauces/crunches originated in China, and are made with dry chilies, spices and aromatics, and neutral-flavoured oils. The precise recipe will vary by country, region, restaurant, and family. The condiment became exceptionally popular in the United States during the COVID-19 pandemic, and in the years since, more and more brands have decided to launch their own line of chili crisps/oils/sauces/crunches, often based on a family recipe.

One of the brands that received a cease and desist letter from Momofuku is Homiah, which was founded by Michelle Tew. Tew grew up in Malaysia, and Homiah’s Sambal Chili Crunch is based on a family recipe that goes back “at least five generations.”

The letter Momofuku sent Homiah 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

Homiah’s chili crunch (top left jar in the photo above) has a colourful paper label, is sold in a larger jar with a black lid, comes in two flavours (seaweed and shrimp), and costs $13.90 USD per 9 oz jar, whereas Momofuku’s chili crunch (bottom left jar in the photo above) does not have a paper label, is sold in a smaller jar with a white lid, comes in four flavours (original, extra spicy, hot honey, and black truffle), and costs $10.39 USD per 5.5 oz jar.

Jenny Gao, the founder of Fly by Jing, which sells a product called Sichuan Chili Crisp, has not been targeted by Momofuku. Gao launched Fly by Jing with the goal of creating a 100% natural chili sauce, in contrast to Lao Gan Ma’s Spicy Chili Crisp, which continues to dominate the chili crisp/oil/sauce/crunch market. Gao is an advisor to Tew, and an investor in Homiah, and spoke with The Guardian regarding the cease and desist letter sent to Momofuku:

Born in Chengdu, Sichuan, Gao says that chili condiments have existed in China for a very long time, and each family, restaurant, company and region has their own recipe and nomenclature. Translating these various chili condiment types into English word-for-word for the US consumer can be clunky, like “fragrant, spicy and crisp”, for example, likely to leave a US consumer puzzled. Labels need to be able to describe chili condiments for mainstream consumers, she said.

Gao was surprised to hear about Momofuku’s cease-and-desist letter campaign and filing for trademark on multiple levels. Gao tried to register “Sichuan chili crisp” as a trademark with the USPTO as it was the first chili crisp in the US sourcing exclusively from Sichuan. It was rejected on the basis of the words being descriptive. Gao is also disappointed by these recent developments, recalling it wasn’t that long ago she was told by investors and retailers that her business was too “niche”. She said she had a “rising tide lifts all boats” attitude toward fellow AAPI food entrepreneurs, as more brands validate the market. “The more people that are coming into the space,” says Gao, “is only going to be better for all of us.”

Based on Gao’s experience unsuccessfully trying to register “Sichuan chili crisp”, it will be interesting to see if Momofuku is able to secure a trademark for “chili crunch”. Chile Colonial LLC was able to successfully receive and has maintained a trademark for “chile crunch”, but I think this had to do with timing (they received the trademark in 2015), and luck (there do not appear to be any other Mexican-inspired chile crunches on the US market). Whether or not they should have received the trademark to begin with is up for debate.  Their original application to the USPTO applied for the mark in relation to “Condiments; sauces”. The USPTO initially refused their application, saying that “chile crunch” was merely descriptive. Chile Colonial LLC  then amended their application on the advice of the USPTO to use the mark in relation to “Condiments, namely, salsa and tapenades; sauces.” Now that Momofuku bought the trademark rights to “chile crunch”, Chile Colonial LLC continues to use the name through a licensing agreement.

Read More In:

• The Guardian
• Eater