In recent weeks, Chicago, IL-based Hawaiian cuisine chain Aloha Poke has become embroiled in a public relations nightmare over a trademark policing campaign which has created backlash over claims of cultural appropriation. According to reports, Aloha Poke has sent cease-and-desist letters to restaurants throughout the United States who have used the term “Aloha Poke” in their restaurant branding. In at least one known case, a letter was sent to a restaurant owner of Native Hawaiian descent operating an Aloha Poke Stop in Alaska.
A search of the U.S. Patent and Trademark Office’s online trademark database shows that the Chicago-based chain holds two registered trademarks at issue in this situation:
- U.S. Trademark Registration No. 5123102, covering an illustration with wording including “ALOHA POKE CO.” for use in commerce with restaurant, catering and take-out services.
- U.S. Trademark Registration No. 5031423, covering the standard character mark “ALOHA POKE” for use in commerce with the same services.
The number of restaurants specializing in poke (pronounced “poh-kay”), a Hawaiian preparation of raw fish that is diced, sauced and seasoned, has rapidly increased in recent years according to data published by The Washington Post. Prior to 2012, there were only 67 U.S. poke restaurants outside the island state of Hawaii, but that number has ballooned to 1,811 such restaurants outside of Hawaii as of 2018. Since the fourth quarter of 2014, poke restaurants have grown in the U.S. at a faster rate than taco, brewpub or acai bowl eateries, currently making poke perhaps the most popular eating fad in this country.
Knobbe Martens Partner Catherine Holland, who specializes in trademark, unfair competition and copyright law, says that the kind of public backlash which has resulted in Native Hawaiian activists calling for boycotts of the Chicago-based Aloha Poke is not limited to the restaurant industry or even instances involving claims of cultural appropriation. “Some trademark owners can be very aggressive in protecting their rights, and that can create a backlash of claims of trademark bullying,” she said. “Even so, I encourage all of my clients to police their trademarks regardless of whether they sell goods or services,” Holland said. “While trademark owners have an obligation to police their trademark rights, each and every letter alleging trademark infringement requires a bit of analysis, and the trademark owner should be sensitive to the possible reaction to the letters they send.”
While Holland said that she couldn’t assume anything about Aloha Poke’s business plans, she did note that the Chicago chain wouldn’t normally be able to prevent the use of the registered trademark in geographically remote locations, such as at the Alaska restaurant, unless there was proof that the Chicago chain had plans to open a location in Alaska. “Even with a federal registration, a trademark owner can’t prevent someone from using the mark in Alaska unless that entity has imminent plans to expand to Alaska,” Holland said. Further, a restaurant using “Aloha Poke” in its branding would have common law trademark rights if their first use of the term took place prior to the filing date of the Chicago-based chain. “If the restaurant had been using that term for years prior to the filing date, that entity has a common law right to continue using that mark in their geographic area,” Holland said.
The claims of cultural appropriation which have developed in the Aloha Poke matter reminded Holland of similar claims made against entertainment mogul Disney when it attempted to obtain a registration for “DÍA DE LOS MUERTOS” as a trademark for merchandise related to an animated film it intended to release in 2017. “It caused an enormous uproar and resulted in a petition that Disney was out of line and that its actions in registering the mark constituted cultural misappropriation,” she said. In that situation, Holland said Disney responded to the backlash by dropping its trademark application and renaming its movie Coco. It also hired the political cartoonist Lalo Alcarez, who was one of the louder detractors of Disney, to act as a cultural consultant on Coco. “Disney completely finessed the problem,” Holland said. “Aloha Poke may want to follow Disney’s example, and consider a public relations solution to the negative publicity caused by their trademark enforcement efforts.” Somewhat ironically, although Native Hawaiian activists have called for boycotts of the Chicago chain for its attempted misappropriation of the term “Aloha,” Holland noted that there are over 1,000 trademark applications and registrations in the USPTO which include ‘Aloha.’ “If Hawaiians are offended by someone who is trying to register ‘Aloha’ as trademark, they’ve got a lot of work ahead of them,” she said.