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 restaurant or
food truck can legally own the right to use words rooted in
Asian American Pacific Islander cultures, such as "aloha" and
"poke." (AP Photo/Terry Tang)
From The Asian Reporter, V30, #05 (April 6, 2020), page
Panda and poke: Restaurant trademarks can stir
By Terry Tang
The Associated Press
GILBERT, 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
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
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
"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
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
Terry Tang is a member of The Associated Press’ Race and