Momofuku and Chang were accused of bullying mom-and-pop manufacturers that have ancestral connections to a spicy-oily-crispy condiment, often known as chili crisp or chili oil, which is popular in China and other Asian countries. The company and its founder were denounced for trying to stifle competition with a trademark that many viewed as not distinctive enough to earn legal protection. Momofuku’s trademark has been repeatedly criticized as “merely descriptive,” but one trademark lawyer also told The Washington Post that it’s too late to challenge the trademark on those grounds.
James Park, a recipe developer and author who wrote “Chile Crisp: 50+ Recipes to Satisfy Your Spicy, Crunchy, Garlicky Cravings,” pointed out in an interview that Jing Gao, founder of Fly by Jing, tried to trademark “Sichuan chili crisp” in 2019. The application was denied because it was merely descriptive, which according to the U.S. Patent and Trademark Office “describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services.” That makes Park wonder why Momofuku owns the trademark for a term that strikes him as having the same issue.
“This feels like the same thing as if they were going after the term ‘hot sauce’ or ‘ketchup’ or ‘mustard,’” Park said.
For days as the controversy unfolded, no one with Momofuku — including Chang and chief executive Marguerite Mariscal — responded to reporters seeking comment. Neither Chang nor Mariscal would comment on the record for this story, but the company provided a statement and background information to tell its side.
On his July 2020 podcast, just ahead of Momofuku’s chili crunch debut, Chang talked about the long, painstaking process for creating the condiment. The recipe pulled from many sources, he said: not just Laoganma, the beloved Chinese company behind a variety of chili sauces and oils, but also Mexican salsa macha and salsa seca. Chang even name checked restaurants from his youth in Northern Virginia.
“We’re not going to do anything that everyone else is doing,” Chang said in the podcast. “It’s gotta be our story, and our story is not our story. Our story is going to be a blending of all these other stories that we’re trying to do differently.”
As such, Momofuku argues in its statement, the company wanted to create a name that “we could own and intentionally picked ‘Chili Crunch’ to further differentiate it from the broader chili crisp category, reflecting the uniqueness of Chili Crunch.” To the company, the name was an attempt to create a brand as unique as, say, the cereal brands Cap’n Crunch and Catalina Crunch.
Momofuku ran into trouble soon after the rollout. A company in Denver, Chile Colonial, already owned the trademark to “chile crunch,” which some experts say gave the company common-law protections for the use of the alternative spelling using “chili.” Colonial sent a cease-and-desist letter to Momofuku, but rather than fight it, the company worked with Colonial to purchase the trademark. Momofuku attained the trademark last year, according to the patent office.
As Momofuku was racking up sales with its chili crunch, moving from what the company said was a niche product to a leader in the chili crisp category, at least two other manufacturers were working to change the name of their condiments to “chili crunch” or a variation of it.
Based in Bellevue, Wash., MìLà had been selling a chili crisp for years, even when the direct-to-consumer company was operating under its previous name, Xiao Chi Jie, said Caleb Wang, a second-generation Chinese American who spent part of his childhood in Shanghai. But about two years ago, Wang and his wife and co-founder, Jennifer Liao, needed to find a solution for their leaky chili crisp jars. While working on that, the couple decided to reformulate their recipe.
“For chili crisp, we decided to put in more garlic, crunchiness,” Wang said. “And we’re like: ‘Oh, this is great. It’s no longer crispy. It actually feels crunchy.’ We had to call it chili crunch.”
Michelle Tew, a Malaysian native who moved to New York to study mathematics and philosophy at Columbia University, launched her own company, Homiah, in 2022. Her sambal chili crunch, based on a family recipe that dates back generations, made its debut last year and is now poised to appear on shelves in Whole Foods and Target later this year. (Whole Foods is owned by Amazon, whose founder, Jeff Bezos, owns The Post.) Tew struggled to come up with a name that would connect with American consumers. She explored a number of possibilities — sambal, crispy sambal, crispy sambal chili — before settling on sambal chili crunch.
“I could have maybe chosen ‘chili crisp,’” Tew told The Post. “But to me ‘crunch’ was more descriptive of what the product is because it didn’t have a lot of oil in it.”
The growing popularity of Momofuku’s product was not why either MìLà or Homiah landed on the term “chili crunch,” say their founders, who both also say the term is not distinctive enough for a trademark.
“If you spend a lot of time developing ... something that’s very differentiated, where people have really good recognition of it, I think you should have the right to protect it,” Wang said. “And my personal opinion is just the use of ‘chili crunch’ is not that.”
Tew with Homiah was even more pointed: When a company trademarks a name that’s “generic or descriptive ... the only thing that can result is monopoly power, which is directly anti-competitive,” she said.
In Homiah’s letter to Momofuku, its lawyer wrote: “This isn’t Momofuku’s first attempt to register generic and descriptive terms for Asian foods. Your client’s attempt to own SSÄM SAUCE (U.S. Trademark Application Serial No. 88881122) in 2021 was ruled generic, and demonstrates a pattern to attempt to own generic Asian cultural products to anticompetitive effect.”
The fight between Momofuku and the companies targeted by its cease-and-desist letters has, more or less, devolved into an argument over whether the patent office should have granted the trademark in the first place. (Last month, Momofuku also applied for a trademark for “chili crunch” even though the company believes its current trademark covers both terms.) Before Momofuku acquired the “chile crunch” trademark last year, Chile Colonial had owned it since 2015, according to patent office documents. Colonial even once successfully defended its trademark.
In 2020, after Trader Joe’s debuted its chili onion crunch, the grocery chain sought to strip Chile Colonial’s trademark, arguing to the patent office that the phrase was merely descriptive and that it “is or has become generic.” But in 2021, the office suspended their dispute pending the outcome of a lawsuit the grocer had filed against the Denver condiment maker. The companies settled that case in 2021, and while the terms were not made public, Trader Joe’s now sells “crunchy chili onion.”
Copyright and trademark attorney Nicholas Wells said he thinks Chang shouldn’t have been awarded the exclusive right in the first place because of the “merely descriptive” issue. The cease-and-desist letters, he said, are a way of keeping smaller companies who might attempt to challenge it in check by raising the specter of litigation they probably can’t afford.
A trademark can be challenged through the trademark office or via lawsuit, Wells says, with the latter route being particularly expensive. For scrappy companies without big budgets for legal fees, it might not be worth it. “They’re more likely to say, ‘We’re gonna just fold, we can’t deal with this,’” he said. “And so by virtue of the sledgehammer approach, he ends up owning it.”
Duke University law professor Jennifer Jenkins was skeptical that, on its own, Momofuku’s more recent trademark application for “chili crunch” would succeed. “There is no secondary meaning connecting it to a single producer,” Jenkins said. “When I see ‘chili crunch’ on a jar, it tells me what’s in the jar, not who produced it.” But, she added, because the company’s existing “chile crunch” trademark has been federally registered for more than five years and the owner has filed the necessary paperwork, it “can no longer be challenged on the ground that it’s merely descriptive.” According to the patent office, five years’ use is one of the pieces of evidence that can be used to prove a descriptive mark has “acquired distinctiveness.”
Before the Momofuku’s product debuted in 2020, the term “chili crunch” — at least relating to a condiment — did not often appear in news stories, according to a search in the database Nexis. Later that year, the phrase began popping up, in reference to the Momofuku product and more generally.
A 2020 Associated Press story headlined, “A guide to all the new condiments lining grocery shelves,” included “chili crunch or chili oil,” which it said was great for drizzling. “Many world cuisines have condiments that are essentially some sort of hot chili paste with a crunchy texture, and lately they’ve been having a moment,” the story read.
By 2021, food stories often used the phrase. A story in the Washington City Paper described a mandu served at Korean hotspot Anju topped with “pickled long chilies and chili crunch powered by gochugaru.” The Florida Times-Union enthused about a pasta dish at Jacksonville’s Town Hall restaurant “with cauliflower puree, pistachios and chili crunch.” A Seattle Times tofu stir-fry recipe called for chili crunch as an ingredient. That year, the Houston Chronicle conducted a test of three published recipes, so home cooks could craft their own version of the condiment it described as “chile crisp, or sometimes called chili crunch.”
As the term “chili crunch” enters into the mainstream, Momofuku noted that it’s not necessarily concerned with the true mom-and-pop shops that enter the chili crisp business. Yet it’s not always easy to tell the Davids from the Goliaths: Momofuku Goods, the consumer goods side of the company, reportedly had $50 million in sales last year and raised around $29 million in two separate funding rounds, while Wang said MìLà has raised around $30 million in capital in 2022 and 2023. What’s more, actor Simu Liu is the chief content officer for MìLà.
Momofuku has indicated it’s more concerned about the larger companies that may try to create a product to capitalize on the growing marketplace, the way Trader Joe’s did with its chili onion crunch. Which is why, Momofuku said, it had to defend its trademark, not to pick on small immigrant businesses.
“Setting this precedent is important to defend brands making innovative strides in new categories from having their work copied by much larger players,” the company said in its statement. “Failure to defend our trademark against any size company would leave us without recourse against these larger players who often try to enter categories on the rise. Our intent has never been to stifle innovation in a category that we care deeply about.”
“As we’ve said in our engagement with these companies,” the company added in its statement, “our goal is and has been to find an amicable resolution — not to harm the competition that makes this category so vibrant. And that is what we’re trying to do.”
History is littered with examples of terms that were once trademarked, including aspirin, escalator, cellophane and laundromat. But some companies have defended their rights even as their products became shorthand for an entire category, including Xerox, Band-Aid and Velcro.
Momofuku’s trademark moves have had at least one unexpected response. Fly by Jing decided to reopen its application for Sichuan chili crisp, which had been rejected years earlier, and also applied for Chengdu crunch, the name of another one of its condiments. The company filed the applications on April 3.
“Our lawyers feared that since there was now a precedent set with the ‘chile crunch’ trademark, [Momofuku] or another party could also apply for ‘chili crisp’ as well in order to corner the market and eliminate competition,” said Gao, the founder, in a direct message on Instagram.
But on Saturday, when a reporter contacted Jing, the company changed course. It said it now believes “there’s been enough awareness raised about the descriptive nature of the term, that the USPTO will reconsider the chili/chile crunch trademarks, and we felt comfortable with filing a request to abandon the application for our product’s name, which we have already done as of today.”
