KMK Law Complex Litigation Blog

Once a company owns a trademark, it must police the mark for unauthorized use, or risk losing its rights. As a result, companies will send “cease and desist” letters to enforce and protect their marks. At times, however, legal rights are only one consideration. Public opinion and consumer perception are also part of the equation, as the Aloha Poke Co. (“Aloha Poke”), a Chicago based restaurant, recently learned firsthand.

Aloha Poke has become the recent target of complaints and protests after its attorneys sent cease and desist letters to restaurants—including a native Hawaiian-owned restaurant—requesting that the restaurants refrain from using the phrase “Aloha Poke” in connection with their businesses. National media have covered the controversy and backlash.

After being informed of such letters, Kalamaoka’aina Niheu, an activist for Kanaka Maoli (native Hawaiian) families, posted on Facebook that Aloha Poke was sending legal threats to Kanaka Maoli families. Ms. Niheu then began a petition for Aloha Poke to remove “Aloha” and “Poke” from its name. According to the petition, the terms belong not to a U.S. company in Chicago, but to the whole of Hawaiian culture. Over 170,000 people have signed the petition, and Aloha Poke’s Yelp and Facebook pages have been inundated with negative reviews.

This is the latest reminder that social media – and the accompanying possibility of widespread social activism – must be considered as part of a holistic branding and IP strategy. Beyond just the question of what trademark rights may be legally available, companies reviewing their IP plans must consider what rights their consumers will expect them to acquire versus which actions in defending them might be perceived as too aggressive.

Then, when it comes to enforcing those rights, it is worth taking the time to craft communications that are respectful and do not provide inspiration for boycotts or crowd-sourced legal defense funds.