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.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.
"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.
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.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.
"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 done all around.
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Filed Under: advertising, david tran, free advertising, hot sauce, licensing, sharing, sriracha, trademark
Companies: huy fong foods
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"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.
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I'd say he's doing just fine.
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Maybe call it "Jelly Much"
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What once-valuable trademark? He never had one, by choice. Did you not read the top half of the article?
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But why do you think me "most definitely" did not have a trademark?
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Are you unaware of how common law trademarks work, or arguing that he definitely did not have a common law trademark? If the latter, why do you think so?
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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.
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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.
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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.
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Yes, but that's unimportant. The company is experiencing excellent growth. That's all that matters.
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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.
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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.
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Also, is this the royal "we"?
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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".
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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.
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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.
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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).
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You can't lose something you never had, genius.
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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.
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I guess you could say the loss of Mr Tran's once valuable trademark to descriptiveness?
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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.
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Even if so, I doubt that lasts much longer.
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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.
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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.
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We need more of this.
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Yes, we do. But the other side seems to tempting. Lawyers, national press and all the PR it brings with it. Yet the human thing (which was done in the articles case) is so humbling in comparision that few will do it.
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Not only that, but Bayer still somehow sells a bunch of the stuff.
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Packaging
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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!
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In that sense, it is not like ketchup at all (or at least it wasn't).
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"Sriracha" may well mean "chili sauce" in other places, but not here, and with use over time, Mr Tran most certainly gained the "acquired distinctiveness" that would allow the registration and protection in the US of what may be a descriptive term in other places.
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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.
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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.
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But the Tabasco Corp also profits from his work. Others might want to profit from their work even if they would feel stupid to trademark a state or a city/place name.
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I disagree. The Tabasco Corp profits from putting sauce in bottles, and selling them. The money is in the work, not the idea. Lots of people don't get that.
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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.
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Hmmm
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Tran is awesome
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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 !
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I've tried srirachas from other brands. It just doesn't taste the same. Which why I'm sure most buy the real deal.
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http://en.wikipedia.org/wiki/Sriracha_sauce
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One thing to note...
Instead, he's trademarked what counts: The bottle shape. The Red Rooster. Etc.
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To be fair
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No, Planters is literally peanuts in the condiment industry. $80mil/year is figuratively peanuts.
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Nothing kicks a slice up a notch like a good dose of rooster sauce.
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Don't forget a dusting of Parmesan cheese. It's the ONLY correct way to eat a pizza....
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Registration with the USPTO does NOT make a trademark
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.
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Sriracha
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.'
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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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sriracha
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