Sriracha Boss On Trademark: Mmmmm, No Thanks

from the techdirt-hero dept

Sriracha, the beautifully flavorful pepper sauce, has a very special place in my fridge, right between the bloody mary mix and the hollandaise sauce. Why? Well, because it bunks with the other breakfast essentials in the Geigner household, that’s why. Where else can you find Sriracha? Well, pretty much everywhere else, even incorporated in the products of other food companies, like Subway, Heinz and Frito-Lay. How is this possible? Through, as you might expect, a complicated series of licensing arrangements?

No, it’s possible because David Tran, the boss at Sriracha makers Huy Fong Foods, never filed to trademark the Sriracha brand. And he can’t be bothered to give any shits about trademarking it today because he’s too busy raking in roughly all the money.

Tran, who now operates his family-owned company Huy Fong Foods out of a 650,000-square-foot facility in Irwindale, doesn’t see his failure to secure a trademark as a missed opportunity. He says it’s free advertising for a company that’s never had a marketing budget. It’s unclear whether he’s losing out: Sales of the original Sriracha have grown from $60 million to $80 million in the last two years alone.

“Everyone wants to jump in now,” said Tran, 70. “We have lawyers come and say ‘I can represent you and sue’ and I say ‘No. Let them do it.'” Tran is so proud of the condiment’s popularity that he maintains a daily ritual of searching the Internet for the latest Sriracha spinoff.

It’s as though Tran were channeling a Techdirt writer with this kind of stuff. The infringement others want him to combat is instead seen as free advertising, propelling sales and spurring on growth coupled with a good-humor attitude towards “rip-offs.” We’d accuse him of infringing on our playbook, but that just wouldn’t be in the spirit of the example he’s setting. Tran goes on to note his belief that more exposure through use of his product’s name will mean even further growth.

Some competitors of Tran are confused, and it’s kind of funny to hear their reaction.

Tony Simmons, chief executive of the McIlhenny Co., makers of Tabasco, said Tran’s Sriracha sauce was the “gold standard” for Sriracha-style sauces, which has largely come to mean any dressing that packs a piquant punch of chili paste, vinegar, garlic and sugar. Simmons was reassured by his lawyers that Tabasco would have no problem releasing a similar sauce using the name Sriracha.

“We spend enormous time protecting the word ‘Tabasco’ so that we don’t have exactly this problem,” Simmons said. “Why Mr. Tran did not do that, I don’t know.”

Well, because he’s too busy being the “gold standard” of the thing you’re trying to get it on using his brand’s name. This means that Tobasco, in this case, is advertising Tran’s product for him, all the more so when his is admittedly the best around. How is Simmons not getting this? And the best part of this is that the USPTO has already issued several decisions stating that the single word “sriracha” on its own is now too generic for any of these pretenders to trademark for themselves. Chalk up another victory for Tran, who allowed the use of his brand name so widely that he’s effectively protected against someone trying to come along and lock it up.

Well done all around.

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Companies: huy fong foods

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Comments on “Sriracha Boss On Trademark: Mmmmm, No Thanks”

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79 Comments
Drawoc Suomynonasays:

“Chalk up another victory for Tran, who allowed the use of his brand name so widely that he’s effectively protected against someone trying to come along and lock it up.” – A novel way of looking at the loss of Mr Tran’s once valuable trademark to genericide.

“Tran goes on to note his belief that more exposure through use of his product’s name will mean even further growth.” – It surely will mean more growth, and hopefully Mr Tran will see some of that growth himself. Hey, as long as Mr Tran is happy, good for him.

Anonymoussays:

Re: Re:

Of course he did. Although the article talks about not “securing a trademark”, a trademark is something you develope through use, and he almost certainly had a common law trademark until he allowed the term to become generic. The fact that he ever obtained a trademark registration (which is what I assume was meant by the article text) doesn’t change that.

Anonymoussays:

Re: Re: Re: Re:

I’m willing to admit that my “of course” and “almost certainly” qualifiers might be a bit over the top, if people in the U.S. actually viewed “sriracha” as a style of sauce, rather than just a name used for the sauce produced by Huy Fong.

But why do you think me “most definitely” did not have a trademark?

Drawoc Suomynonasays:

Re: Re:

One doesn’t need to file an application for the use of the term to be considered trademark use, regardless of how the esteemed Mr Tran viewed the name. He created a unique product, put a name on the product, consistently sold the product under that name, and in time his customers came to identify the name with this product of a certain flavor and quality – boom, a trademark is born.

Now once Mr Tran allowed others to use the same name on their products of varying quality and taste, customers could no longer trust that the name identified Mr Tran’s unique product, and now his customers have to look for Mr Tran’s unique label design and/or bottle shape, both of which Mr Tran has protected with trademark filings and does seem to defend consistently and regularly.

So yes, Mr Tran had created recognizable tradeamrks in his brand name, label design and trade dress, but he has chosen to allow his word mark to become generic and only defend his other IP.

amoshiassays:

Re:

“A novel way of looking at the loss of Mr Tran’s once valuable trademark to genericide.”

Well… you clearly don’t understand what the world genericide means… what makes you think that you know better than Mr. Tran about the “value” of any potential trademark?

“It surely will mean more growth, and hopefully Mr Tran will see some of that growth himself. Hey, as long as Mr Tran is happy, good for him.”

What your sneering tone doesn’t really seem to pay any attention to is the fact that we have evidence that not getting into the trademark game is working for Mr. Tran. You don’t have to say “hopefully” he’ll see some of that growth. He’s seeing a huge amount of it. Did you read the article?

Oh wait, you’re just a troll. And I fell for it. I lose an internet.

Anonymoussays:

Re: Re:

Tran may believe allowing free use of SRIRACHA is a better idea than fighting to preserve exclusive rights, but that doesn’t mean he thinks that the term or exclusive rights to the term is not valuable. Don’t go assuming you know what Tran thinks better than somebody else does in your effort to show that others shouldn’t think they know better than Tran does (how’s that for clarity?).

As far as growth goes, it is impossible to tell whether that growth would have occurred at a faster, slower, or unchanged rate had he opted to protect/enforce trademark rights.

Anonymoussays:

Re: Re: Re: Re:

That is not all that matters when evaluating whether the “not getting into the trademark game is working”.

If he would have experienced 100% growth with a strong, protected trademark, then I think it’s wrong (or at least misleading) to say that that this strategy is working.

It’s like saying that, because the U.S. has experienced significant economic growth and technological innovation, our patent system is great. Well, maybe we would have had better growth and innovation with a different system, or no system.

John Fendersonsays:

Re: Re: Re: Re: Re:

“That is not all that matters when evaluating whether the “not getting into the trademark game is working”.”

We disagree. He decided not to get into the trademark game, and his company is showing healthy growth. It’s obviously working.

“If he would have experienced 100% growth with a strong, protected trademark, then I think it’s wrong (or at least misleading) to say that that this strategy is working.”

We disagree about this as well. It’s only the purest of speculations that he could have had greater growth, but let’s say that he would have. Even so, that doesn’t mean that the strategy isn’t working. In order to know that, you have to know what his goal is. If it’s to maximize growth at any cost, then no, it’s not working. However, that may not be his goal at all (and I suspect it isn’t). Perhaps his goal is to have a profitable company that operates according to a specific ethical code. Or perhaps his goal is to have a profitable company while avoiding certain unpleasant entanglements such as suing people.

You can’t really say if a strategy is working or not without knowing what it is he’s trying to achieve.

John Fendersonsays:

Re: Re: Re: Re: Re: Re: Re:

“I don’t think it’s intellectually consistent to use growth as a standard for measuring whether something is “working”, and then say you can’t use growth as a measuring standard for whether something else might “work” better”

That’s not inconsistent at all. In fact, the exact point that I’m making is that Tran’s benchmark for what is or is not working may not be solely based on how much growth his company is experiencing. Unless growth is the sole thing that he’s aiming for, a different approach that may increase the rate of growth may not in fact work “better”.

“Also, is this the royal “we”?”

No, I meant “you and I”.

Drawoc Suomynonasays:

Re: Re:

Ouch, amoshias, I was going for sarcastic, not sneering, and I actually like TD a lot so what you see as trolling I see as trying to widen the perspective here and spread some info. I have no idea how much Mr Tran knows about trademarks, but I do know enough to hold my own.

And while Mr. Tran has allowed sriracha to roam free in the world, bless his heart, to say that he is not “getting into the trademark game” would be incorrect. Mr Tran’s still brands his products with label graphics and a bottle shape that are protected by registered US trademarks.

That One Guysays:

Re: Re: Re: Re:

Only if you can’t do it in a mature and civil fashion.

Also, what’s with the ‘groupthink’ myth, I don’t know about you, but I’ve read enough articles and comments on TD that it’s abundantly clear that while people may share similar general stances on some subjects, when you get down to the details, there is plenty of differing opinions.

Anonymoussays:

Re: Re: Re: Re: Re:

I have never seen the Drawoc Suomynona name here before. But everything he’s posted here has been mature and civil; much more than the average TD comment, in my view.

Sarcasm and snark won’t get you called a troll around here unless you express a view contrary to the dominant TD position (I acknowledge that not everybody here agrees with every detail on every issue; after all, I’m here).

John Fendersonsays:

Re:

“A novel way of looking at the loss of Mr Tran’s once valuable trademark to genericide. “

But that hasn’t happened. If you say “Sriracha” to pretty much anybody, they’ll think of Mr. Tran’s sauce specifically. For other brand that uses the name “Sriracha”, the consumer expectation is that it has Mr. Tran’s sauce in it.

Sriracha only means one specific sauce to people. That’s the opposite of genericide.

Drawoc Suomynonasays:

Re: Re:

Sorry John, I’m not sure I understand. Sriracha had once meant only one specific sauce to Americans, but that now no longer holds. With others using the term, it now generally describes a type of chili sauce. Is that not the same as Frisbee, or Asprin, or Thermos?

I guess you could say the loss of Mr Tran’s once valuable trademark to descriptiveness?

John Fendersonsays:

Re: Re: Re:

“but that now no longer holds.”

It certainly holds in my part of the country. I don’t know of anybody who sees “Sriracha” and thinks of it as a style of sauce. They think of it as a specific sauce (and is called colloquially “cock sauce”). The the name is applied to other products, literally everyone thinks that the product is claiming that it includes that specific sauce.

Perhaps things are different in your area.

John Fendersonsays:

Re: Re: Re: Re: Re:

“Are you sure that is the current feeling, even with Jack in the Box, Subway, and all sorts of huge national outlets using “sriracha” without any connection to Huy Fong in the last year or so?”

Yes, I’m as close to completely certain as is possible. Everybody assumes that if “Sriracha” is being mentioned, it’s this guys’ sauce specifically being used. If that’s not the case, then people will be very angry at these chains.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

Certainly some commenters here say otherwise (that “sriracha” refers to a style of sauce, like ketchup, not a particular brand/source). Your view, which used to be my view, may still be true for a lot of people, or even the majority, but that’s not going to last if Huy Fong does not change strategy (which it appears they have no intention of doing).

ltlw0lfsays:

Re: Re: Re:

I guess you could say the loss of Mr Tran’s once valuable trademark to descriptiveness?

Maybe, but like John, I see Sriracha and I immediately think of “Cock Sauce” (because of the giant rooster on the packaging.) I tend to use a lot of it, and like Mr. Geigner, it holds a special place in my refrigerator.

French’s produces a Worcestershire sauce (which actually sucks, if you buy it thinking it is Lea & Perrins, a Heinz company, Worcestershire sauce.) When someone talks about Worcestershire sauce (or embalming fluid, thanks South Park,) I immediately think of Lea & Perrins, not French’s brand Worcestershire.

It may be that it is what most of us grew up with, and that in the future, French’s Worcestershire might replace Lea & Perrins as the version everyone thinks of, but I think it is still a description of specific brand and not a general sauce.

Anonymoussays:

Re: Packaging

Hear, hear! That is what trademarks are for!

Got a cool rooster logo you want to make sure competitors can’t use, trademark it!

Have a genuinely distinctive bottle with a fun green cap? Trademark it!

You want to make sure that no one anywhere in the world can call a particular condiment by one of its actual names? No sale!

Re: Re: Packaging

Yes, exactly. The guy makes great sauce and runs a great business, but Sriracha sauce exists in hundreds of varieties, and was around for decades before he came here and founded his business. Trying to trademark Sriracha would be like trying to trademark the word ketchup, soda, cars, or jeans. That said, his is one of my favorite Sriracha sauces.

Anonymoussays:

Re: Re: Re: Packaging

For years and years, I viewed “sriracha” as synonymous with the sauce produced by Huy Fong, and I think that’s true of most U.S. consumers that were familiar with sriracha. Only after unlicensed use by others in the U.S. did I come to view “sriracha” as a style of sauce rather than as a sauce produced by a particular source.

In that sense, it is not like ketchup at all (or at least it wasn’t).

Re: Re: Re: Re: Packaging

In most Americans’ heads, Sriracha sauce is equivalent with Huy Fong Foods brand Sriracha, but just because most people here had never heard of any other type of Sriracha before doesn’t mean they didn’t exist, and it doesn’t make those other brands infringing for using the word Sriracha. Please not I am not criticizing Huy Fong Foods or their Sriracha sauce in any way – I admire the fellow and his company, and his sauce is great.

Anonymoussays:

Re: Re: Re: Re: Re: Packaging

“…and it doesn’t make those other brands infringing for using the word Sriracha.”

That’s where we differ. If the vast majority of the relevant market views a term as a source identifier (i.e. a brand or trademark), rather than a generic or merely descriptive term, due to its use in commerce by a single source, then it is a trademark from a legal perspective (at least in the vast majority of cases).

Now, conceivably, they could be using “sriracha” in some manner not likely to cause confusion, even among those who view “sriracha” solely as referring to the sauce made by Huy Fong. But at least some people (e.g., John Fenderson, above) thing that people are likely to take use of “sriracha” to mean that the product is or is using Huy Fong sauce. That’s infringement.

I think we are in a period of change right now where he conceivably could still bring a claim because enough people still view “sriracha” as referring to Huy Fong’s sauce. But that will not last long as more and more people use “sriracha” to refer to producst unassociated with Huy Fong.

yankinwaozsays:

City name

What is funny is that he didn’t trademark it because he didn’t think he could trademark a city name.

Tabasco, the sauce, is named after the Tabasco peppers that came from the state of Tabasco in Mexico. So really, the sauce is named after a place. Yet, it is trademarked.

He is a smart guy. Letting the Tabasco Corp run all of those expensive ads for him.

Nopsays:

Re: Re: City name

“But the Tabasco Corp also profits from his work.”
So what? He’s making tens of millions of dollars a year, so why would he care? It amazes me that so many people think that success alone isn’t enough, as though it doesn’t count unless you’re bankrupting your competitors as well. It’s a big market, there’s enough room for everyone to do good business.

AH2014says:

Tran is awesome

David Tran is a very savvy guy and an interesting person. If you go take a tour of the factory there’s a great chance you’ll actually meet him. But if you don’t know upfront what he looks like you won’t know it, because he doesn’t make a big deal out of who he is, he just likes to keep his finger on the pulse.

Anonymoussays:

Re: Tran is awesome

have we found the only ‘real’ human bean in korporate amerika ? ? ?
MAJOR props to Mr. Tran, a standup mensch…

while i use louisiana hot sauce some (hmmm, ‘louisiana’? how did that get through the trademark?) i buy it ’cause it was the cheapest hot sauce bottle on the shelf; i am going to seek out and buy some of his sauce JUST BECAUSE he’s shown us to be a great guy…

thank you, Mr. Tran !

Nicholas Weaversays:

One thing to note...

Mr Tran did not come up with the name Sriracha: that town in Thailand is known for a homemade paste pepper sauce. Its different from Tran’s famous Red Rooster sauce, but the name Sriracha is not original, so trademarking it would be questionable in the first place.

Instead, he’s trademarked what counts: The bottle shape. The Red Rooster. Etc.

Ninjasays:

Happened here with a brand called Catupiry. They make a special type of creamy cheese I have yet to see on other countries but they don’t bother when pizzerias and other brands use their name to describe their product. So instead of “creamy cheese” this type of cheese is known as catupiry. And while there are brands that are as good such as Scala or Tirolez when you think “creamy cheese” you automatically associate it with Catupiry.

Andrew Lopatasays:

Registration with the USPTO does NOT make a trademark

This story is interesting but could have been much better if it didn’t perpetuate the myth that registration of a trademark is equivalent to ownership of trademark rights. As others here have noted, one does not need registration to acquire trademark rights. In fact, (with limited exceptions) one must prove that one has a trademark before the United States Patent and Trademark Office (USPTO) will register a mark.

In the United States, one acquires trademark rights by using a trademark in commerce. Registration provides benefits for enforcement but does not create trademark rights. This is why cancellation of the Redskins USPTO registrations (almost universally, and erroneously, reported as cancellation of the “trademarks”) does not mean that the football team cannot enforce the “redskins” trademark. It only means that they lost (or will lose if they lose their appeal) certain benefits that come from federal registration.

There is much confusion among the public about the way trademark law operates. Techdirt generally does a much better job than most media outlets at explaining such issues but could do better.

J Van Eppssays:

Sriracha

If you look up Sriracha on Wikipedia you see that the word is generic in South East Asia as the word ketchup is here. It just is not a word you could patent. However, his label is patented. If he is getting attorneys telling him he could patent the name Sriracha, either he or they are liars.

Why exactly is Mr.Tran being congratulated for not doing something he could not not do anyway?

Tobasco Sauce is different, Tobasco Sauce is not a phrase which predates the product, which is the difference between calling something a cola vs. calling something Pepsi.

If you are going to congratulate Mr. Tran, I want you to congratulate me for not copywriting the word ‘mustard.’

naschsays:

Re: Re: Re: Sriracha

Last time I looked, you could trademark perfectly common English words like “Apple” in the U.S.

As long as they’re not merely descriptive. Apple computers are OK, and they can keep others from making electronics called Apple. Apple brand apples on the other hand, is a non-starter. You couldn’t trademark the word Apple to sell fruit, and then prevent anyone else from using “apple” to describe their product.

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