A Midwestern chain of poke stores named Aloha Poke is under fire this week for threatening legal action against Native Hawaiian small businesses who use the words “Aloha” and “Poke” in combination to sell the traditional rice and fish dishes.
Aloha Poke Company — founded by former owner Zach Friedlander — registered the phrase “aloha poke” as a trademark in January 2016. Now, Aloha Poke Company’s attorneys have sent numerous cease and desist letters to other poke shops named “Aloha Poke” — many of them owned by Native Hawaiian small business owners — demanding that they change their name and branding. Unfortunately, many of those small businesses can’t afford to fight the large chain store in court for the right to use their own language, and have been forced to undergo the costly process of rebranding.
For the last several years, Asian American rock band, “The Slants”, has been in a knockdown fight with the US Patent and Trademarks Office (USPTO) over their band’s name.
The fight stems from a decision made by the USPTO to refuse registration of “The Slants” as a trademark on the grounds that the bands’ name is racially offensive to Asian Americans. The USPTO was empowered to make their decision based on the 1946 Lanaham Act, which prohibits the registration of any mark that “consists of or comprises of immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt, or disrepute.”
In practice, the USPTO frequently makes such decisions unilaterally through the determination of a single case officer who by happenstance receives an application to register a questionable mark. Consequently, the USPTO has been notoriously inconsistent in their determination of a mark’s “immoral”, “scandalous” or “disparaging” content. “The Slants” is a group of Asian American musicians seeking to reclaim an offensive word they recognize as traditionally a slur; despite the USPTO’s refusal of their application, the Office has permitted the registration of “Dykes on Bikes”, which is a group named under similar reasoning.