Momofuku’s Chili Crunch Oil Catastrophe

By: Stella B. Haynes Kiehn 

The famous culinary brand Momofuku’s recent attempt to trademark “Chili Crunch” oil has ignited a sizzling debate between federal trademark law and a beloved cultural staple, ultimately leading to a public apology by the brand’s founder.

Momofuku, a food empire owned by celebrity chef David Chang (“Chang”), comprises four restaurants in New York, Las Vegas, and Los Angeles. Chang founded Momofuku in 2004 with the opening of Momofuku Noodle Bar in New York City. The New York Times credits Momofuku with “the rise of contemporary Asian-American cuisine” and Bon Appétit magazine named Momofuku the “most important restaurant in America.”  Momofuku also sells “restaurant-grade products for home cooks” and bottled versions of their famous sauces – the start of the currently contested trademark issue.

Early this year, Momofuku launched a pre-packaged version of their infamous chili sauce, calling it “Chili Crunch.” The sauce is described as “a spicy-crunchy chili oil inspired by Chinese chili crisp and Mexican salsa seca and salsa macha.” Consumers can purchase the Chili Crunch through Momofuku’s website for $13 per 5.5oz jar. On March 29, 2024, shortly after the product was introduced, Chang applied for federal trademark registration of the term “Chili Crunch.” The mark’s application sought to cover “condiments; sauces; food flavorings being non-essential oils; chili oil for use as a seasoning or condiment; chili oils being condiments.”

The names of foods can be trademarked in certain situations. A trademark is a word, phrase, symbol, or design that identifies and distinguishes one party’s goods from those of another party. In other words, a trademark sets one product apart from its competitors. Therefore, in the culinary world, a food trademark is a name, logo, or phrase used to brand and distinguish a food product from similar food products made by other companies. Momofuku likely would have applied sooner for federal trademark protection but was limited because federal registration requires the mark to have been used (or have a bona fide intention to use) in commerce.

Currently, the mark is merely at the application stage, and no decision has been issued by the United States Patent and Trademark Office (USPTO) as to the validity of the mark. Despite this, Chang’s team began to send out cease and desist letters to other businesses using the term “chili crunch” to describe their chili oil sauces. One such recipient, Michelle Tew (“Tew”), founder of the Malaysian food brand Homiah, told The Guardian that the letter states “that Momofuku is the ‘owner of all trademark rights’ for ‘chile crunch’ and ‘chili crunch’ (two different spellings) and that her product, Homiah Sambal Chili Crunch, is a trademark infringement. Tew said her chili crunch is based on her Malaysian family’s recipe, where she grew up.” Buzzfeed published a similar story about another cease and desist letter recipient; “MìLà, a company specializing in frozen soup dumplings and founded by husband-and-wife team Caleb Wang and Jen Liao, posted a similar statement on Instagram after receiving their own cease-and-desist from Momofuku, stating that there’s ‘’” In both letters, Momofuku informed recipients that they had 90 days to cease use of the “Chili Crunch” mark prior to legal action.

The registration of names for food products is nothing new. However, at issue here is both the general community’s and the AAPI (Asian American Pacific Islander) community’s argument that Chang’s excessive policing of “Chili Crunch” essentially turned him into a “trademark bully.” Notably, businesses that were the subject of the cease and desist letters were quick to take to social media and point out that they were all recipients were members of the AAPI restaurant community. Additionally, many recipients also noted that the term “chili crunch” was a “generic cultural term.”

On April 15, likely due to pushback from the culinary AAPI community, Chang announced that he would not enforce the trademark for “Chili Crunch.” While Momofuku still owns the rights to the term “Chile Crunch” (spelled with an “e”), Chang stated that Momofuku will no longer enforce that mark (Momofuku acquired the trademark for the name “chile crunch” from Chile Colonial in 2023). Momofuku elaborates that their decision to no longer enforce the mark could open the door for another company to claim the mark in the future.

Ultimately in a statement to The Eater a Momofuku spokesperson stated; “this situation has created a painful divide between Momofuku, the AAPI community we care deeply about, and other companies sharing grocery store shelves. But the truth is, we all want the same things: to grow, to succeed, and to make America’s pantries and grocery stores a more diverse place.” Ultimately, Momofuku’s case has highlighted that while companies may pursue trademark protection to safeguard their brand identity and market position, companies must also navigate the delicate balance of respecting cultural heritage and community sentiments.

The Coachella Festival: A Celebration of Art, Camping, Live Music and Litigation!

Photo by Vishnu R Nair on Pexels.com

By Mackenzie Kinsella

The Coachella Valley Music and Arts Festival 

The Coachella Valley Music and Arts festival is undoubtedly one of the most iconic music festivals. Coachella is held yearly in Indio, California. The festival is traditionally held over two weekends in April and lasts three days per weekend. Since its inception in 1999, this festival has hosted some of the most popular names in music including Harry Styles, Beyonce, the Red Hot Chili Peppers, Lady Gaga and Prince. In the early 2020s, Coachella has attracted record breaking amounts of attendees, including an average daily attendance of about 125,000 festival goers. In 2023, the festival had over 500,000 attendees over the two weekends. As a result, Coachella is a very lucrative festival bringing in hundreds of millions of dollars. Although Coachella has always landed huge headliners and huge crowds, Coachella also has a lengthy history of litigation over the trademarks associated with the festival’s brand. 

Previous Coachella Trademark Litigation 

            Coachella’s litigious history has included rival festivals and clothing lines. In 2017, the Coachella Valley Music and Art Festival filed a lawsuit against Urban Outfitters for trademark infringement. Coachella claimed that one of Urban Outfitter’s brands, Free People, was infringing on its trademark by using the festival’s name in advertising specific products, the “Coachella” boot, the “Coachella Valley” tunic and the “Coachella” mini dress. Additionally, Coachella argued that Free People’s use of its trademark name would confuse consumers in determining what products were actually authorized Coachella merchandise and what were Free People’s products. Coachella’s trademark litigation battles, however, do not end with Free People. 

            Coachella’s fight for brand protection continued in 2022 when the festival giant sued Afrochella, a Ghana musical festival. Coachella claims that the Afrochella name is intentionally using the well-known Coachella and Chella trademarks by using this trademark to promote Afrochella’s own festival. The Coachella festival argues that the use of Afrochella would likely cause confusion within the festival market and consumers may associate Afrochella with the Coachella brand. While this kind of litigation history may seem alarming, Coachella’s adamant efforts to protect its trademark are warranted given trademark law’s protection. Trademark law holds trademark owners responsible for enforcing its trademark within its marketplace; if there are more brands that coexist with similar names, then the original trademark owner’s protection is weakened. Once a brand or company name becomes so commonplace that the name is not connected solely to the original product brand genericide occurs. Brand genericide is a major problem for companies today, especially considering the time it takes for a brand to become generic has decreased over time with the increased use of social media and universal language. 

Current “Moechella” Litigation 

            Currently, Coachella is suing the creators of Moechella, a concert series in Washington D.C. Similar to its previous legal arguments, Coachella is arguing that this Moechella festival will cause confusion by suggesting an affiliation with Coachella. Furthermore, Coachella is suggesting that the association due to the similar event name is damaging due to a deadly shooting that occured at a previous Moechella festival. Coachella is asking the Court for an injunction to prevent the use of the Moechella name, the logo, any profits using the term Moechella, punitive damages, attorney’s fees and compensation for corrective advertising. However, this degree of legal action against Moechella is gaining some criticism. Moechella’s trademark use is being critiqued as a David vs. Goliath battle. Moechella is being deemed, by critics of Coachella, as the party focused on a community initiative against the billion dollar Goliath. Moechella’s trademark application was blocked by Coachella’s legal team. However, Moechella’s creators claim that the Moechella’s event purpose is to uplift Black music and not monetize a name. Justin “Yaddiya” Johnson, a Moechella creator, claims that such litigation is an aggressive move to stop the expression of Black music. However, given the pressure on trademark owners to be mindful of brand genericide, it can be argued that trademark owners, like Coachella, have to be proactive to protect their products. 

Riddle me this Batman, what does it take to infringe on copyright?

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By: Drew Carlson

In late 2022, writer Chris Wozniak sued Warner Brothers, claiming that the 2022 hit film The Batman copied a comic book story he’d proposed thirty years prior. In a 45-page judicial opinion from March 27th, Judge Paul Engelmayer held that the recent movie had not infringed on Wozniak’s copyright and even declared that Wozniak infringed on DC’s copyrights by writing a Batman story.

Was there infringement? If so, from whom?

What’s the situation, Commissioner?

In 2022, The Batman was released in theaters. Set in a corrupt and strife-filled Gotham, the film features a younger Batman investigating a series of murders committed by the Riddler, a long-time Batman villain since the 1940s. Batman solves the villain’s signature riddles to try and foil his destructive plans. The film was a hit with critics and audiences alike, making $370 million in the domestic box office and earning an 85% rating from critics. However, one man was less than pleased.

In 1990, Christopher Wozniak wrote a story called The Ultimate Riddle, later retitled The Blind Man’s Hat. Set in a corrupt and strife-filled Gotham, the story features an older Batman investigating a series of murders committed by the Riddler. Batman solves the villain’s signature riddles to try and foil his destructive plans. Wozniak submitted the story to DC Comics along with a few other publishers (changing the character names to correspond with the company) but none were interested.

However, when Wozniak saw the movie, he believed the film’s premise and large portions of its plot were identical to his own story. He sued Warner Bros. for copyright infringement against his story, leading DC Comics to file a counterclaim against Wozniak for infringement against their Batman property.

Holy Infringement, Batman!

Copyright infringement “occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” For example, copying someone else’s story or characters is infringement. However, copyright does not protect against more than one artist creating identical works, so long as they do so independently of each other.

When there is no direct evidence of copying, courts can use indirect evidence to infer it. This method requires proving both access and substantial similarity. Proving access shows that it is plausible for the accused infringer to have actually seen the work they supposedly copied. After all, you cannot infringe on a work you have not seen. 

Substantial similarity requires that the two have enough similarities that an ordinary observer would believe that one is imitating the appeal of the other. Some similarity is allowed, but not to the point where similarities become so apparent that the total look and feel of the infringed-upon work has been taken by the infringing one.

However, ideas themselves cannot be copyrighted, only creators’ expression of them.  So, the idea of a boy training a dragon cannot be copyrighted. But, the way dragon training is expressed in both Eragon and How to Train Your Dragon can be copyrighted. When it is inevitable that ideas will be expressed in certain ways, copyright is more lenient to similarities between works. Elements that are common to a type of work are often protected as “scenes-a-faire.” For example, it is not infringing for a western to show the heroes riding into the sunset because such imagery is common.

Did the movie infringe, Batman?

No, it did not. For one, Director Matt Reeves had no access to Wozniak’s story. Wozniak submitted his story to DC Comics and a few other publishers in the 1990s, along with film producer Micheal Uslan in 2008. 

Matt Reeves worked for Warner Brothers, not DC. He claims he did not even contact DC during the film’s writing, nor was he even aware of Wozniak’s story. Instead, he took inspiration from noir films like Chinatown, Taxi Driver, and his own prior knowledge of Batman.  Even if he had contacted DC, the company could not find Wozniak’s story in its archives and its executives were unaware it existed. Producer Micheal Uslan, whom Wozniak pitched his story to, was credited as an executive producer on The Batman. However, Uslan had no actual involvement making the film, and was only credited due to an agreement he made with Warner Bros. in 1988. Thus, the judge found there was no reason to believe Reeves had any access to Wozniak’s story. No access, no infringement.

Additionally, the two stories are not substantially similar. Strip away the parts DC owns (the Batman mythos), and what is left are a collection of story elements that easily qualify as scènes à faire. Both stories depict a loner serial killer lashing out at a corrupt society and leaving riddles to his crimes, while an intrepid hero investigates to stop him. All of these elements are common to the crime genre and have appeared in works like Sherlock Holmes to Dirty Harry.

When the Batman elements are added back, the scenes-a-faire becomes even clearer. The Riddler has been leaving clues for over half a century. Gotham has been depicted as corrupt and crime ridden for decades, and Batman has been solving crimes there since before the Second World War.

In short, the film did not infringe on Wozniak’s story. But did Wozniak infringe on DC’s property by writing a Batman story?

Counterclaim, Old Chum:

DC filed a counterclaim against Wozniak for infringing on their copyright to Batman. Batman is DC’s property, as are his villains, his supporting cast, and even his car! Wozniak did not just write a crime story, he wrote a Batman story. While DC was fine with him writing stories to pitch to them, they did not authorize him to create it for his own personal use.

If Wozniak wanted to overturn this infringement ruling, his best argument would be that his story was fair use. Fair use is a defense to infringement where the accused infringer admits to copying but alleges said copying is “fair.” The defense examines the purpose and character of the usage, the nature of the underlying work, the amount and substantiality of the copied portions, and the effect on the original’s markets. Commercial use weighs against the use being fair. However, uses that are transformative, meaning the new work has a different purpose and thus is not a substitute for the original, are more likely to be fair. The most important factors for a finding of fair use are the purpose of the use, and the effect on the original’s market.

Wozniak’s story was offered to DC as a spec script, and has not been sold to anyone else. Therefore, he could argue that his work had a different purpose (as a spec script) and did not threaten DC’s market. However, the fact that he was trying to sell the story could easily weigh against fair use. Even if he did win, it would cost him valuable time and money after he already lost his main argument.

And The Batman got away:

In short, the filmmakers of The Batman had no access to Wozniak’s story. Most of the similarities between the two are common among works of their genre. Meanwhile, Wozniak’s story used many elements belonging to DC comics, opening him to an infringement claim.

In his decision, Judge Engelmayer granted Warner Bros. and DC’s motions for summary judgment, dismissing the copyright claim against Warner Bros. and granting the one against Wozniak. The only claim left open is DC’s claim of copyright fraud. Wozniak’s lawyer responded by saying, “[w]e respectfully disagree with the court’s decision and are considering our next steps.” Whether the case continues is in the parties’ hands. We’ll just have to tune in, same Bat Time, same Bat Channel.

Are Pig Kidneys Patentable? The Legal Landscape Around The First Genetically Engineered Pig Kidney Transplant

By: Bethany Butler

Last month, doctors at Massachusetts General Hospital successfully transplanted a genetically engineered pig kidney into a 64-year-old patient. Scientists removed porcine genes and added human genes via the CRISPR-Cas 9 gene editing technology. In total, sixty-nine of the pig’s genes were modified prior to transplantation. The surgery took approximately four hours, with the kidney functioning almost immediately after transplantation. eGenesis, a biotechnology company focused on genetically engineered, human-compatible organs, invented this procedure and the resulting genetically engineered kidney. This novel procedure may help to alleviate critical organ shortages in the US, with more than 100,000 Americans currently on the transplant wait list. Scientists hope this procedure will pave the way to more research and clinical applications that may help to alleviate the organ transplant shortage. 

The Legal Landscape

Novel research and clinical applications surrounding xenotransplantation, the transplanting of animal cells/organs to humans, have the potential to revolutionize access to life saving therapies. However, the legal landscape surrounding this science is far from settled. While areas of xenotransplantation of pig organs into humans have been granted patents, the procedure itself has not been approved by the FDA. These procedures, like the one used for the modified pig kidney transplant, are only currently able to move forward using “compassionate use” exceptions granted by the FDA. These exceptions apply to patients with life-threatening conditions where there is no alternative for treatment. 

Another important aspect of the law surrounding xenotransplantation is informed consent. Informed consent is a protection provided by the Health and Human Services regulation, 45 CFR Part 46. The regulation requires that important information, including any risks, be disclosed to the patient before he or she decides to participate in any trials or undergo treatment. Xenotransplantation procedures carry unique risks, such as zoonotic infections and the need for lifelong monitoring and intervention due to the nature of the procedure. Patients must be informed of and consent to all of the unique risks involved with these types of treatments. 

Xenotransplantation and Patent Law

Biological patents are generally utility patents, which allow the patent holder to exclude others from making, selling, using, or importing their biological invention for a specified period of time, currently twenty years in the United States. Companies like eGenesis can own biological patents for genetically modified animal organs and associated methods for xenotransplantation. Currently, these types of patents are protected by law, provided the claimed subject matter is not naturally occuring. US patent law has exceptions to patentable subject matter that are laws of nature, natural phenomena, and products of nature. The Supreme Court found, in the landmark case Association for Molecular Pathology v. Myriad Genetics, Inc., that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” The case concerned whether the BRCA1 and BRCA2 genes can be patent eligible when isolated. These genes are responsible for tumor suppression and mutations in these genes commonly lead to the development of breast cancer. If the Supreme Court had ruled that Myriad Genetics could patent these gene sequences, that ruling would have effectively prevented any other company from offering diagnostic testing for these genes, thereby monopolizing the breast cancer diagnostic market. The Supreme Court’s decision relied on the statutory provisions in 35 U.S.C. § 101, which addresses patentable subject matter. The court has found exceptions to what is patentable, including laws of nature and natural phenomena. In terms of biological material, if the invention or process is something that naturally occurs, then it is ineligible for patent protection. 

Some eligible biological patents granted in the past include the PCR process and transgenic animals – an animal whose genome has been edited to contain genes from another species. The first transgenic mammal patented was the Harvard Oncomouse, developed by Harvard in the 1980s. This mouse was genetically modified to be more likely to develop cancerous tumors, making it a valuable cancer research subject, and patent eligible. 

Innovation for novel developments in the transplant space, like the genetically modified pig kidney, is encouraged by the patent protection of inventions utilized for xenotransplantation technology. eGenesis has received a number of patents related to the xenotransplantation process, including utility patents for the methods to generate genetically modified animals/cells and for genetically modified animals/tissue/cells used for xenotransplantation.  

The narrowing of biological patents to non-naturally occurring subject matter allows for companies like eGenesis to obtain patents for biological innovations while still protecting research and development efforts, particularly diagnostic testing of carrier genes. Patent eligibility of biological and natural phenomena is currently being addressed in Congress. On June 22, 2023, the US Senate released the Patent Eligibility Reform Act of 2023 (“PERA”). If passed, this act would clarify patent-eligible subject matter and potentially allow for the patenting of solely isolated genes, possibly overriding the Myriad decision. 

While patent eligibility of biological subject matter has the potential to allow for greater innovations, like modified organ transplants, expanding patent-eligible material may lead to negative downstream impacts. Granting monopolies can lead to access issues for diagnostic testing and increasing costs to use isolated genes in research and development efforts. Granting patent protection to biological patents is important and the right balance is necessary to further innovation and facilitate problem solving medical solutions. While patent law is complicated and evolving, novel advancements like the pig kidney transplant are largely driven by innovation incentives and a greater need for medical solutions to the transplant wait list issue.

“Road House” Screenwriter Declares War on Amazon

By: Mayel Andres Tapia-Fregoso

On March 21, 2024, Amazon Studios released its latest blockbuster film “Road House,” a remake of the original 1989 action classic. Following its launch on Amazon Prime Video, Amazon’s streaming platform, the studio revealed that as of April 1, 2024, the film reached 50 million viewers. Yet, despite the film’s apparent success, Amazon’s Road House production has been filled with controversy. On February 27, 2024, R. Lance Hill, the writer of the original Road House (1989) screenplay, filed a lawsuit against Amazon Studios and its subsidiary MGM, alleging copyright infringement. Hill alleges that Amazon ignored his ability to reclaim the rights for his 1986 screenplay, disregarding his rights under law.

The premise of Road House is centered on the story of an ex-UFC fighter, played by Jake Gyllenhaal, who is approached by the owner of the Road House bar offering him a second chance at life. Located in the remote Florida Keys, Gyllenhaal leaves his brawling days behind to protect the bar against a criminal enterprise who seeks to develop the land under the Road House for its own ends. 

Under U.S. Copyright law, a writer must wait thirty-five years from the date of the execution of a copyright grant before terminating the grant. After thirty-five years have passed, the writer can terminate the copyright grant by serving notice to the grantee in writing at least two years in advance of the effective date of termination. The copyright grantee’s rights, including the right to create a derivative work, expire upon effective termination of the grant. A derivative work is a work based on or derived from one or more already existing works. Cinematic adaptations of screenplays are considered derivative works. However, an artist cannot terminate the copyright in a work is made for hire which is when the work is created by an employee as part of the employee’s regular duty or when the work is created as a result of an express written agreement between the creator and the party commissioning the work. The party commissioning the work is considered the author and copyright owner.

Hill wrote the original screenplay in 1986 for the film label United Artists (UA), owned by MGM. According to the lawsuit, Hill did not have an employment or contractual relationship with UA when he wrote the screenplay. Hill entered into a “literary purchase agreement” with UA through his personal company, Lady Amos Literary Works Ltd., who owned the rights to the copyright. Therefore, according to Hill, UA only owned the rights to the screenplay for a limited time.

In November 2021, thirty-five years after Hill completed the original Road House screenplay, he filed the necessary petition with the U.S. Copyright Office and notified Amazon of his intent to terminate the grant of the copyright in two years. According to the complaint, Amazon instituted a self-imposed deadline to complete the Road House remake before the copyright in the original Road House screenplay would revert back to Hill in November 2023. The studio began filming the remake in 2023 until the 118-day-long Screen Actors Guild strike took place, pausing production until November 8, 2023. In his complaint, Hill argues that Amazon took “extreme measures” to finish the film by November 2023 at considerable cost by resorting to using artificial intelligence (AI) to “replicate the voices” of the actors in the remake. However, Amazon still completed the movie in January 2024, two months after the copyright reverted to Hill.

An Amazon spokesperson claimed that the allegations in the complaint were “categorically false” including the allegations regarding Amazon’s use of AI to replicate actor’s voices in the film. However, a person close to the studio suggested that if Amazon exploited actor’s voices by using AI to finish filming the remake, it was during the early stages of production. Studio executives insisted that the filmmakers remove any traces of AI in the finished product. Ultimately, the issue in this case will turn on whether Hill wrote the screenplay while under contract with UA or if he worked on it independently when he sold the rights to UA.Hill’s lawsuit is the latest in a stream of lawsuits by screen writers reclaiming the rights to their screenplays created in the 1980s from major film studios. In 2021, Arthur Miller, the creator of the Friday the 13th (1980) screenplay, successfully reclaimed his copyright in the screenplay by defeating Manny Inc., in a lawsuit decided by the 9th Circuit. In that case the court ruled in favor of Miller because it found that the screenplay was not a work made for hire, allowing him to terminate the transfer of copyright. As more time passes, we will likely see more artists seek to reclaim the rights to their work, giving them freedom to reap the benefits of their work long after the work’s initial creation.