Rooster sauce by any other name is not still Rooster sauce
I am a Sriracha sauce addict. I admit it. It goes on everything I make, from eggs, to soup, to popcorn. Specifically my favorite is the Sriracha sauce also called Rooster sauce manufactured by Huy Fong Foods, named because of the rooster on the front of the bottle.
Initially I didn’t realize that not all Sriracha sauces were created equal. In my ignorance, I thought Sriracha was the brand name. Recently I purchased some “spicy Sriracha Peas (sidenote – that is not me in the video),” and although they were delicious, it was not the same tasty full bodied, sweetly unique Huy Fong flavor that I had come to love. So here’s the deal.
Sriracha sauce is relatively young, only recently available since the 80’s. Huy Fong foods makes the most popular version in the United States. David Tran, a Vietnamese immigrant residing in Los Angeles, developed the delicious flavor based on hot sauces from Sri Racha, Thailand. Originally selling bottles out of his van, he now sold over 10 million bottles of Huy Fong Foods Sriracha Sauce, with an estimated 2007 profit of 3.2 million. Additionally, the sauce is made on machinery designed by Tran himself.
So really how do I make an IP blog about my favorite food condiment? To begin with, as stated above, Sriracha is not the brand name. In fact, it is most likely unprotectable under federal trademark law because primarily geographically descriptive marks are bared from registration unless there is secondary meaning. In In re Joint-Stock Company “Baik,” the test for determining if a mark is primarily geographically descriptive is whether (1) the term in the mark sought to be registered is the name of a place known generally to the public, and (2) if the relevant public would make a goods/place association. If the goods do in fact originate in the place named in the mark, the goods/place association can be presumed and must be overcome by the applicant. As a policy reason, the geographic area must not be known for the production of the particular good, as registration of a mark should not disadvantage others from making similar products. Here, Sri Racha is known for creating a similar, but not identical, hot sauce.
This might pose a difficult hurdle for an applicant to overcome. But remember, a rejection can be avoided by proving, via surveys or otherwise, that relevant consumers don’t know that the particular place is known for making Sriracha sauce. And unlike a complete bar, an applicant can overcome a section 2(e)(2) with acquired distinctiveness, aka secondary meaning. A TESS search of the USPTO shows two live marks: one for a design mark of a bottle of Sriracha sauce, but the words “Sriracha Hot Chili Sauce” are disclaimed. The other is Huy Fong’s design mark, but like the first, “Tuong Ot Sriracha” is disclaimed. Not only has Huy Fong’s sauce become a valuable asset, but its label also has brand value. For example, they are now manufacturing popular water bottles that look like their hot sauce bottles. Alas, in conclusion, for all you entrepreneurs and lovers of sriracha sauce, it appears that it is fair game to use the word “Sriracha” to describe sauce from that region.
P.S. As a somewhat unrelated side note, I came across this interesting blog where the author relates coming across packets of Sriracha sauce, made by “Chili Boy” and not Huy Fong. The author creatively discovers another possible trademark issue involved, in that the Chili Boy logo looks remarkably like the Starkist Tuna character.