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Chicago Poke Chain Sends C&D To Hawaiian Poke Joint Demanding It Not Be Named 'Aloha Poke'

from the poke-in-the-i dept

Usually a trademark bully bullying over a mark that is fairly generic is enough to get the hair on our backs to stand up. When you add in a little irony in the form of the bully engaging in fairly blatant cultural appropriation for that generic mark, things get even more salty. But when you then have the bully spout off thinly-veiled political language of the most annoying variety in response to the backlash, you have something of a unique dish of hatred.

Which brings me to Aloha Poke Co. of Chicago. Aloha Poke Co. is a chain of restaurants cashing in on the poke craze. It is not owned by Hawaiians, the language from which the word "Aloha" is quite famously taken. It does not operate in Hawaii. And, yet, it has seen fit to fire off a cease and desist notice to the Aloha Poke Shop in Honolulu, demanding that it immediately change its name and branding.

The lawyers with the firm represented a company from the city, the Aloha Poke Co., that had jumped on one of the latest food trends - selling the Hawaiian staple poke, made from raw marinated ahi tuna - in 2016 and quickly expanded their reach to more than a dozen locations in Chicago and cities such as Milwaukee, Denver, and Washington D.C.

Sampson also operated a poke shop, a luncheonette of 20 seats that he had opened with three friends in downtown Honolulu that shared little in common with the Chicago chain besides the dish and, coincidentally or not, given the commonality of the Hawaiian word, the name. When Sampson and friends opened the luncheonette about a year and a half ago, they had named it the Aloha Poke Shop, using the traditional Hawaiian greeting and word of welcoming. Now the lawyers, with the firm Olson and Cepuritis, Ltd., were demanding that he change the business's name, website, logo and materials to cease using the words "Aloha" and "Aloha Poke" immediately.

Now, Aloha is a multi-meaning word of Hawaiian origin that is also used as a greeting on the island. Famously so, in fact. In connection with anything Hawaiian, it's about as generic as it gets as a source-identifier. Poke is the name of the dish these restaurants sell. It is purely descriptive. Putting a generic term next to one that is purely descriptive ought to be fairly easy for the USPTO to have looked at and realized that it never should have been afforded trademark protection. But, since it did, the end result is that Aloha Poke Co. has been going around the country, including in markets in which it does not operate, and demanding that native Hawaiians stop using their own language for their businesses. That really is about as insane as it gets.

And the public backlash to all of this has been swift.

But the news that the Midwestern chain, which doesn't count any native Hawaiians among its founders, was sending cease-and-desist letters to threaten small poke restaurants not only in Hawaii, but around the country, has set off an even deeper round of anger, touching on longstanding wounds left from Hawaii's long history of colonialism and commodification at the hands of outsiders.

The disclosures about the cease-and-desist letters have resulted in calls to boycott the Chicago chain, including a petition to urge the company to drop the words from its name. A congressional candidate from Hawaii has issued a sharp rebuke on social media. And hundreds of angry commenters have flocked to the chain's social media pages to express their displeasure, accusing the company of cultural appropriation, of bullying small businesses, of disrespecting Hawaiian culture and well, not even making real poke in the first place.

To be honest, the emphasis on cultural appropriation doesn't impact me all that much as to the validity of the trademark. Such appropriation may be gross, but as a matter of law it should be clear that the better argument is that Aloha Poke Co.'s trademark is far too broad and generic to serve to identify the source of its product to the public. Frankly, I was somewhat inclined to ignore all of the consternation about cultural appropriation entirely, until the Aloha Poke Co. and its founder decided to speak up using barely-coded language to, ahem, poke its detractors in the eye.

"First, we want to say to them directly how deeply sorry we are that this issue has been so triggering," the company said. "In the rare instance where we have needed to send notices to those using our trademark in the restaurant industry, we have done so in a cooperative manner, and all have complied with our request to rebrand without any resulting legal action. Not a single business has closed as a result of this."

Triggering? Cool PR you guys have there. And, from the founder, Zach Friedlander, who is no longer with the company but has supported its efforts at trademark bullying.

The company's founder, Zach Friedlander, who left it earlier this year around the time former Potbelly executive Chris Birkinshaw was brought on as CEO, according to Eater, defended the company's actions on Facebook as "efforts taken to protect, as any business would, its brand" and labeled some of the criticism as "false news" and a "witch hunt."

It seems Hawaiian language isn't the only thing Aloha Poke Co. appropriates from. Still, the end result of all of this should be sobering for the chain. Calls for boycotts, an infestation of negative comments on its social media pages, not to mention that Sampson has decided to stand his ground and not change a thing about his Aloha Poke Shop mean that the only move the chain has left is either to slink away or, worse, actually take a Hawaiian native to court over all of this. Either would serve as an own-goal for its business.


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  • icon
    That Anonymous Coward (profile), 1 Aug 2018 @ 8:05pm

    Their trademark filings disclaim ownership of poke and poke co. I am confused how they think they marks as described in their trademark filings apply to other businesses. Oh and I wonder if any of the businesses were open before 2016 when they filed for the mark.

    A business might not have closed but many have had to spend a lot of money to rebrand themselves b/c it seemed cheaper than getting the trademark tossed.

    My respect for lawyers found a new bottom...

    reply to this | link to this | view in chronology ]

  • icon
    Mike Brown (profile), 1 Aug 2018 @ 8:07pm

    Next step?

    I was thinking of bringing this up to you, but you beat me to it. I'm in Hawaii, so I got wind of it through Coconut Wireless.

    There is a change.org petition to get Aloha Poke Co. to change THEIR name, but it seems to me that's the wrong approach. Businesses in Hawaii have been sharing the word "Aloha" in business without issues for all these years. That's probably why this case is particularly irksome. There was no need for them to do this. No one in Hawaii would have cared if Aloha Poke Co. of Chicago was using the word. It wasn't until the C&D's started rolling in that people got upset.

    It would seem the more appropriate thing to do would be to get that trademark invalidated. So many poke shops, in Hawaii and elsewhere, predate the Chicago company by a lot. I would think any of those business owners could take steps to get it invalidated, right?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 Aug 2018 @ 8:45pm

      Re: Next step?

      It would seem the more appropriate thing to do would be to get that trademark invalidated.

      If the backlash gets big enough, the Chicago company might withdraw the trademark itself. Hope for invalidation (to set a precedent), but keep an eye toward corporate discretion.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 2 Aug 2018 @ 12:51am

        Re: Re: Next step?

        "defended the company's actions on Facebook as "efforts taken to protect, as any business would, its brand" and labeled some of the criticism as "false news" and a "witch hunt.""

        Uhhhh I'm thinking the odds of that are really really low.

        reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 1 Aug 2018 @ 8:42pm

    Speaking about bullies

    Heh, PokeShop.

    I'm just surprised that Nintendo didn't C&D all of them... yet.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 Aug 2018 @ 8:48pm

      Poke has been around longer than Pokémon, just so you know. Nintendo would not stand a chance in hell of winning a legal action unless it bankrolled the slimiest lawyers that have not yet been hired by Electronic Arts.

      reply to this | link to this | view in chronology ]

      • identicon
        ryuugami, 2 Aug 2018 @ 2:09am

        Re:

        Dammit. Almost every time I try to write a comment that's shorter than an essay, someone misunderstands it and I have to spend twice as much explaining that no, that's not what I meant (this is not limited to Techdirt). I should probably just give up on this whole "efficient communication" thing, since I really suck at it, and embrace the loquaciousness that seems necessary for getting my point across :(

        Poke has been around longer than Pokémon, just so you know.

        Of course it has been around longer -- I've never heard about poke before, but traditional dishes tend to be a bit older than modern media franchises. This has never stopped a trademark/copyright bully before.

        Nintendo would not stand a chance in hell of winning a legal action unless it bankrolled the slimiest lawyers that have not yet been hired by Electronic Arts.

        Yes. Hence the surprise. Nintendo also has a reputation as a bully, and they also have a lot of money to spend on bullying.

        Let me translate my comment, maybe I can avoid any further misunderstandings.

        Title: Speaking about bullies

        Translation: This article reminds me of some other companies that often misuse "Intellectual" Property laws

        First line: Heh, PokeShop.

        Translation: Titles of these stores look like something straight out of a Pokemon franchise. It is, of course, not a trademark infringement, but it can look like one to an overzealous legal department if they squint and ignore everything else.

        Second line: I'm just surprised that Nintendo didn't C&D all of them... yet.

        Translation: Nintendo has an overzealous legal department, and a reputation for legal threats. I would not be surprised if Nintendo sent a Cease&Desist to these companies, threatening them to stop using the word "poke" in their names. It doesn't infringe the Pokemon and related trademarks, but it can superficially appear to do so. Bullies do not care for details.

        There. I hope that clarified my position, and sufficiently explained my joke comment. I did not suggest that Nintendo should threaten these restaurants, I insinuated that it is something they might do. I do not support legal threats and bullying, and I know how trademarks are supposed to work. I have also been reading Techdirt for a long time, so I know that a lot of people and companies either don't know or don't care how trademarks are supposed to work.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 2 Aug 2018 @ 3:01am

          Re: Re:

          You could have just said you were being sarcastic and that Poe's Law was in effect, and saved yourself some time. I doubt it's that Stephen didn't understand what you meant, it's that there's enough people who would say such things seriously that he decided to correct you anyway just in case.

          reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 2 Aug 2018 @ 10:51am

        Poke, poke poke

        Given the trademark bullying on display here, the action would more likely be the other way around: they'd sue Nintendo. Pokeball is way too similar to poke bowl.

        reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 2 Aug 2018 @ 4:38am

      Re: Speaking about bullies

      Poke literally means "little things." Pokemon is called that because it's little monsters. Ahi Poke is not called that because of the game.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 2 Aug 2018 @ 6:57am

        Re: Re: Speaking about bullies

        Pokemon is called that because it's little monsters.

        And because Nintendo could not get the rights to use “Pocket Monsters” in the US, mainly because of the Monster in My Pocket franchise. (Bit of trivia: Konami published a Monster in My Pocket game on the NES four years before the first Pokémon games were published on the Game Boy.)

        reply to this | link to this | view in chronology ]

      • icon
        Cdaragorn (profile), 2 Aug 2018 @ 7:37am

        Re: Re: Speaking about bullies

        The guys comment was an obvious sarcastic joke about Nintendo's litigation habits. Stop taking it seriously.

        Also, Poke literally means "to slice" in the context of Hawaii. It has nothing to do with the context of Japanese at all and so literally does not mean the same thing.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Aug 2018 @ 3:25pm

          Re: Re: Re: Speaking about bullies

          And in English, a poke is a hemp sack. Or pushing something with your index finger, of course.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Aug 2018 @ 10:11pm

    I don't see how Aloha Poke is any more generic than, say, Hello Kitty.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Aug 2018 @ 10:35pm

    Given the speed of the courts...

    all the proceedins will be very poke-y

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2018 @ 1:40am

    Shakas to All

    "...labeled some of the criticism as 'false news' and a 'witch hunt.'"

    Hoales, amiright?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2018 @ 3:47am

    I think the Hawaiian Aloha Poke Shop should rebrand as "Murder Capital of America" and see how those Chicagoans like their culture being appropriated.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2018 @ 5:16am

      Re:

      I doubt they'd care at all, considering that Chicago isn't even close to having the highest murder rate in the country. That dubious honor belongs to St Louis. Yes, Chicago has the most murders, but the city is only 9th when accounting for population.

      https://www.thetrace.org/2018/04/highest-murder-rates-us-cities-list/

      Not to mention that would be a terrible deal for the Hawaiian shop. I, for one, wouldn't dream of stepping foot into a restaurant selling raw fish under the brand, "Murder Capital of America."

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 2 Aug 2018 @ 5:23am

        Re: Re:

        It would provide some funny merchandise opportunities though.

        'I thought I was going to Chicago and instead all I got was a fish salad.'

        reply to this | link to this | view in chronology ]

      • icon
        Dark Helmet (profile), 2 Aug 2018 @ 6:23am

        Re: Re:

        Yes, and let me assure you that this continual smearing of my beloved home city is especially annoying to those of us that live here, travel through the city (including the West and South sides) every day to get to work, and even travel all throughout the city to visit client sites and, yet, somehow manage to not get mega-murdered every five steps we walk....

        reply to this | link to this | view in chronology ]

        • icon
          Cdaragorn (profile), 2 Aug 2018 @ 7:48am

          Re: Re: Re:

          Having visited the city several times because a good portion of my wife's family grew up there, I can say it's a beautiful place that I love to go to as long as I'm with someone who knows the area pretty well.
          It is however reasonably off-putting to anyone who doesn't for good reason. We have no idea what areas we should avoid or what to be cautious of. While the above statement may not be factually correct, it is truly alarming to know just how many people are murdered there every year.
          It's also largely a matter of opinion whether that statement is correct or not. It is perfectly reasonable to count the highest number of murders regardless of number of people.

          reply to this | link to this | view in chronology ]

    • icon
      wshuff (profile), 2 Aug 2018 @ 6:20am

      Re:

      If the whole "Murder Capital" thing doesn't work, how about Windy City Poke and Brats?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2018 @ 3:29pm

      Re:

      Maybe they should rebrand as O'Leary's Smoke Shop -- that might hit a bit closer to home.

      reply to this | link to this | view in chronology ]

  • identicon
    johnthurston, 2 Aug 2018 @ 12:45pm

    Countrywide

    It looks like they're going after businesses in the 49th state as well as those in the 50th.

    "Tasha Kahele is a native Hawaiian. In April, she opened Aloha Poke Stop [in Anchorage, Alaska]. Then in May, she got a letter from a Chicago-based chain demanding she change her restaurant’s name."

    https://www.alaskapublic.org/2018/08/01/national-chain-forces-native-hawaiian-to-drop-aloha-po ke-from-anchorage-restaurant/

    reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 2 Aug 2018 @ 1:30pm

    Other laws may affect this too

    For example, it seems possible that truth in advertising laws would require that the name of the restaurant chain in Chicago change their name to Ahole Poke.

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Zuckerberq, 3 Aug 2018 @ 5:49pm

    Wait a Cotton-Pickin Minute!

    My company owns the trademark "Poke". What in the hell are they trying to pull here!

    reply to this | link to this | view in chronology ]


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