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U.S.A.
April 6, 2020
Panda and poke: Restaurant trademarks can stir legal fights
PANDA PROBLEMS. The outside of Panda
Libre, an Asian-Mexican fusion restaurant, is seen
in Gilbert, Arizona. Getting a trademark for a name
can lead to ugly and sometimes public clashes over
ownership and cultural appropriation. In recent years,
businesses have butted heads over whether a restau-
rant or food truck can legally own the right to use
words rooted in Asian American Pacific Islander cul-
tures, such as “aloha” and “poke.” (AP Photo/Terry
Tang)
By Terry Tang
The Associated Press
G
ILBERT, Ariz. — When picking a
name for their Asian-Mexican
fusion restaurant in suburban
Phoenix, Paul and Nicole Fan settled on
“Panda Libre,” hoping the mix of China’s
iconic bear and the Spanish word for “free”
would signal to customers the type of
cuisine it offered.
That decision could cost them dearly.
Chinese takeout chain Panda Express
sued them in federal court alleging
trademark infringement.
The lawsuit showcases how trademark
law can collide with an evolving dining
landscape, where restaurateurs peddling
Asian or Asian “inspired” foods often pick a
name that instantly invokes a connection
to that culture. But getting a trademark
for the new name can lead to ugly and
sometimes public clashes over ownership
and cultural appropriation. In recent
years, businesses have butted heads over
whether a restaurant or food truck can
legally own the right to use words rooted in
Asian American Pacific Islander cultures
like “aloha” and “poke.”
The growing popularity of fast-casual
restaurants like Thai, Indian, or poke —
diced and marinated raw fish — has led to
a rush for ownership of certain aspects of
that culture, said Telly Wong of IW Group
marketing agency in New York City.
Having a name that conveys authenticity
is crucial when consumers make snap
judgements, he said.
“Sometimes you need that cultural
shorthand to convey that message,” Wong
said. “Otherwise, you’re explaining to
people, ‘Oh, at Jack’s, we sell southern
Chinese food.’”
Panda Express’ parent company,
Rosemead,
California-based
Panda
Restaurant Group, says it has owned the
trademark for “Panda” for Chinese food
services since 2001. The chain wants a
court injunction and for Panda Libre to
destroy signs, social-media posts, and
other materials with the name.
“It would be like starting a new
company. That alone there is hundreds of
thousands of dollars in this restaurant,”
Nicole Fan said. “Going through this whole
ordeal, the lawsuit, will bankrupt us.”
On top of punitive damages and legal
fees, Panda Express, which generated $2
billion in sales last year, is asking for all of
Panda Libre’s profits since it opened last
year in Gilbert, about 20 miles east of
Phoenix.
“Oftentimes it’s overstated — the
damages — to get the attention of the
defendant,” said Charles Valauskas, a
Chicago intellectual property attorney
who has represented restaurants. “It’s not
like (Panda Express is) going to sit there
and wait till every last penny is drained
from a bank account.”
Experts say Panda Express is within its
right to trademark “Panda” for restaurant
and food products.
“If you were selling pandas under the
name ‘Panda,’ you probably wouldn’t be
able to do that because it’s describing
literally what you’re doing,” said Mark
Simpson, a veteran intellectual property
lawyer in Philadelphia. “It’s like trying to
trademark the words ‘grocery store.’ You
could trademark ‘Whole Foods’ the grocery
store.”
Panda Express, which Andrew and
Peggy Cherng launched in 1983 as an
offshoot of their Panda Inn restaurants,
has more than 1,900 locations nationwide.
The company says it has a “legal obligation
to consistently protect them” but is hopeful
for a resolution.
“We believe there is a path forward that
allows for this small business to operate
while respecting our intellectual property
rights, and we remain open to a
conversation with those involved,” the
company said in an e-mail.
Nicole Fan says nobody has entered
Panda Libre thinking it was a Panda
Express. She points to the logo — a panda
dressed in a cape and mask like a Mexican
wrestler — and the fact that there are
other eateries that use “panda.”
Panda Restaurant Group said it takes
legal action on a “case-by-case basis.” It
also says it settled several trademark
infringement issues without litigation last
year.
Other efforts to trademark cultural
words have been met with fierce online
backlash.
In 2009, loyalists to chef Roy Choi’s Kogi
Korean taco truck went online to accuse
Tex Mex chain Baja Fresh of stealing his
concept. The Los Angeles-based truck’s
name came from a combination of gogi, the
Korean word for meat, and “K” for Korean
BBQ. Baja Fresh had applied to
trademark “Kogi” for its own line of
Korean tacos and merchandise.
Within a day, the company publicly
apologized for appearing to hijack Kogi.
Baja Fresh said it would instead use gogi.
It also dropped the trademark pursuit.
In 2018, Chicago-based Aloha Poke Co.
trademarked its name and sent
cease-and-desist
letters
to
poke
restaurants with “aloha” or “aloha poke” in
their names. In Hawai‘i, the birthplace of
the raw fish dish, locals decried a
“mainlander”
dictating
how
their
community used their own language. A
Slay the Dragon — a gerrymandering investigation
POLITICAL LINES. This image released by
Magnolia Pictures shows a scene from the film Slay
the Dragon. (Magnolia Pictures via AP)
By Jake Coyle
The Associated Press
F
eeling beaten down by the news?
Why not watch a documentary on
gerrymandering to cheer you up?
Slay the Dragon, by Chris Durrance and
Barak Goodman, deftly outlines how
redistricting has eroded American
democracy and helped usher compromise
out of our legislatures. It’s a level-headed
documentary about an unlevel playing
field that traces the scope and magnitude
of district map-drawing for political gain.
Slay the Dragon, which is now available
on-demand and in digital release after
having its theatrical release cancelled by
the coronavirus, may not be the most
heartening portrait of our political system.
But it’s a vital one and it provides reasons
for optimism, too.
Aside from laying out the strategies and
manipulations of gerrymandering, it
tracks a handful of those fighting its
practice, including the lawyers whose case
rises to the Supreme Court and a humble
Michigan woman named Katie Fahey. She
turns almost accidental activist when a
Facebook post leads to the creation of a
grassroots campaign to put Michigan’s
district drawing in the hands of a
bipartisan citizen commission — a practice
now used, in some form, in 21 states.
But most states have their maps drawn
up by their own state legislatures every 10
years, an approach that can breed obvious
conflicts of interest. Gerrymandering has
been around for more than 200 years. Its
name comes from a Massachusetts
redistricting that gave early 19th-century
Boston-area districts the appearance of a
salamander. Its long been a tool of both
parties, though Slay the Dragon is focused
on the Republican efforts to win state
houses in the 2010 election with the intent
to redraw maps.
It was a hugely successful effort (some of
the key strategists are interviewed here)
that led to the flipping of 11 state
legislatures. The subsequent redistricting
created its own assortment of oddly shaped
maps: a “snake” in North Carolina, an
“upside down elephant” in Texas, a
“praying mantis” in Maryland.
Redistricting can have the result of
quarantining the votes of one party or one
demographic, thus muting the political
power of potentially a larger portion of the
public and essentially preordaining that a
party will hold certain congressional seats.
Several of North Carolina’s districts, in a
map that has since been ruled to have
violated the state constitution, were 55%
or 57% African American.
Slay the Dragon seeks to draw the con-
nections between such seeming govern-
mental minutia with much broader policy
and political effects. The filmmakers
explain how Michigan’s redistricting
played a pivotal role in the Flint Water
crisis, how Wisconsin’s redrawn districts
fuelled the divisive agenda of former
Wisconsin governor Scott Walker, and how
such maps potentially aided the election of
Donald Trump in 2016.
The movie is ultimately an effort to take
something arcane and make it clear — to
read between the lines, so to speak. No one
will mistake the politics of Slay the
Dragon; it’s clearly liberal-leaning. But
the aims of the documentary’s characters
aren’t in themselves political: they want
votes to count. And they don’t want
Washington operators remaking their
districts.
Slay the Dragon, a Magnolia Pictures release, is rated
PG-13 by the Motion Picture Association of America
for brief strong language. Running time: 101 minutes.
social-media firestorm followed.
Jeff Sampson’s Aloha Poke Shop in
Honolulu was among those worried about
a lawsuit. But he got a letter from Aloha
Poke Co. attorneys that said he was
“allowed” to use the term because of the
geographic location.
“That was the worst business decision
they made to go after ‘aloha’ and ‘poke,’”
Sampson said. “Hawaiian poke has been
around for hundreds of hundreds of years.
It’s like a cheeseburger. You can’t
trademark cheeseburger.”
Wong would advise anyone trying to
trademark a word or term — be it for a food
or a fashion line — to make sure you’re not
going to be seen as culturally insensitive or
appropriating.
“Consumers are just more informed and
culturally aware now,” Wong said. “It’s
just good business practice to be
authentic.”
Nicole Fan says she and her husband
will try to fight the lawsuit and hang on to
the Panda Libre name, which they had
trademarked without problems.
But now, they are at risk for “doing the
right thing,” she said.
Terry Tang is a member of The Asso-
ciated Press’ Race and Ethnicity team.
q
Chinese company abandons
$1.8B Arkansas paper mill plan
By Andrew DeMillo
The Associated Press
L
ITTLE ROCK, Ark. — A Chinese
company has abandoned its plan to
build a massive paper mill in
southwestern Arkansas that had already
been delayed by trade tensions.
Sun Paper told governor Asa Hutchin-
son and economic development officials in
a letter dated March 15 that it would not
move forward with its plan to build a mill
in Arkadelphia, about 60 miles southwest
of Little Rock. The company cited
“continued political friction and economic
instability” as well as the coronavirus
outbreak as reasons for walking away from
the project.
“With the likelihood of the project
uncertain, it is also fair to allow the state of
Arkansas to use its resources for other
ventures that have less uncertainty in the
medium term,” Andrzej Bednarski, the
company’s international project director,
said in a letter. “At this moment, the
collective uncertainties make it a better
choice for both of us to abandon the
project.”
The letter was first reported by Talk
Business and Politics.
The announcement came after Arka-
delphia officials announced that the com-
munity was marketing the 1,000-acre site
planned for the mill to other potential
projects. The $1.8-billion mill was an-
nounced in 2016 but has faced uncertainty
since then because of trade tensions.
State commerce secretary Mike Preston
said none of the incentives that had been
announced at the time have been paid to
the company and the state was looking at
ways to use the now de-obligated funds for
other economic development opportuni-
ties.
“It’s a big disappointment for everyone
involved,” Preston said in a statement.
“Lots of hard work, from the local
community to our state partners, went into
to seeing this project succeed.”