The Aloha Poke Case: When Trademarks Facilitate Misappropriation

The Hawaiian greeting “aloha” carries many meanings: hello, goodbye, love, community, and sharing. Interpreting the word to mean its final definition, it is ironic that Zach Frielander decided to trademark the word as part of his restaurant chain, Aloha Poke, which began in Chicago, Illinois. Since the approval of the trademark by the United States Patent and Trademarks Office (USPTO) in 2016, Frielander has made headlines by sending cease-and-desist letters to various other similarly named establishments in Alaska, Washington, Colorado, Wisconsin, and Hawaii using the words "Aloha" or "Aloha Poke.” Business owners and community members were outraged. Tasha Kahele of "Aloha Poke Stop" in Anchorage (now "Lei's Poke Stop"), spent thousands of dollars rebranding in order to avoid legal action from Frielander’s legal representation, Olson and Cepuritis LTD. [1] 

Given the prevalence and historical significance of both “Aloha” and “Poke” in native Hawaiian culture, Frielander should not have been able to trademark the words in the first place. Similar cases, such as Abercrombie & Fitch Company v. Hunting World and San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. demonstrate a double standard in which other words that are common to a Western lexicon are considered “generic” and do not receive trademark protection. This discrepancy between how minority groups in the U.S. and the USPTO evaluate generality indicate that our legal system is not currently equipped for the handling of culturally charged intellectual property. 

Trademarks vary in strength and fall into one of four categories: fanciful/arbitrary, suggestive, descriptive, or generic. [2] Fanciful or arbitrary trademarks are the easiest to protect as they involve marks that are either unassociated with the goods in question or marks that are completely made up. Suggestive trademarks hint at, but do not describe the protected goods; the USPTO cites “GLANCE-A-DAY” calendars as an example. [3] Descriptive marks directly describe marketed goods--such as “CREAMY” yogurts--and are considered weak trademarks. Lastly, generic marks do not qualify for protection because they refer to common names for products or services, such as “MILK” for dairy beverages [4].

Friedman's trademark met massive backlash for its vagueness, especially from those who believed that his Midwestern restaurant chain was not authentic poke. Native Hawaiians and allied mainlanders alike felt as if Friedman was claiming exclusivity over words of great significance to Hawaiian culture. In July of 2018, Aloha Poke Co. released a response via Facebook insisting on “nothing but respect” for Hawaiian culture. [5] The company warned against the conflation of their trademark, "Aloha Poke," with a claim to the individual words: "Aloha" and "Poke." "Neither is true and we would never attempt to do so," they wrote. [6] 

Yet the problem lies in the approval of the trademark itself. The semantic distinction between the words "aloha" and "poke" and the phrase "Aloha Poke" is unimportant given the frequency and cultural significance of both words. One Facebook commenter asserted that trademarking "Aloha Poke" is akin to trademarking "Texas BBQ"-- the phrase is simply too generic and widespread. [7] However, the USPTO did not find “aloha” or “poke” to be widespread enough to achieve exemption from trademarking. Friedman did more than trademark two words; he claimed exclusive rights to the significance behind them. 

In 1976, the U.S. Court of Appeals Second Circuit declared that "generic terms are never entitled to protection," yet upheld a trademark on the word "Safari" in Abercrombie & Fitch Company, Plaintiff Appellant, v. Hunting World, Incorporated. [8] While Hunting World insisted that the phrase was commonly known as "a journey or expedition, especially for hunting or exploring in East Africa," the Court of Appeals agreed with Abercrombie & Fitch; the phrase was specific enough to be used as a trademark in commercial apparel. [9] Both the cultural significance and the broad meaning of the word "Safari" were not enough to invalidate the trademark. In other words, the court decided that the word was not common enough in United States culture and lexicon to escape commercialization. 

In 1987, the U.S. Supreme Court ruled in favor of the United States Olympic Committee (USOC) in a 5-4 decision, stating that “Olympic” was not a generic term. Thus, the USOC held full rights to its usage and the San Francisco Arts & Athletics Inc. could not use it for promotional or commerce purposes. [10] The majority, led by Justice Powell, cited the historical significance of the Olympic games in granting the word “Olympic” a “secondary meaning.” “The USOC, together with respondent International Olympic Committee (IOC), have used the word "Olympic" at least since 1896, when the modern Olympic Games began… Baron Pierre de Coubertin of France, acting pursuant to a government commission, then proposed the revival of the ancient Olympic Games to promote international understanding.” [11] The widespread understanding of “Olympic” in the U.S. as referring to the specific yearly sporting event is rooted in the acceptance of Western history to be the basis of judgement. 

The USPTO maintains in its Federal Statutes and Rules that anyone with "a bona fide intention" who is "showing good faith" can apply to use a trademark in commerce. [12] There are few restrictions on the types of words and phrases that can be trademarked as long as a thorough application is completed. The vague nature of such qualifications leaves room for speculation about the true intentions of the applicant and the words they may wish to claim. Neither does “a bona fide intention” guarantee protections to marks that are historically or culturally significant to indigenous populations.

Thus, obtaining a trademark depends on seemingly arbitrary distinctions between words that are considered “general” in mainstream American culture and those that are not. In particular, words that are meaningful to indigenous and marginalized communities are not seen as generic in the same way that others are. This is the reason that Zach Frielander could trademark “Aloha Poke” and Abercrombie & Fitch could trademark “Safari,” but one could not feasibly trademark “Texas BBQ.” Lindsey Hokulei writes in the UCLA Indigenous People’s Journal of Law, Culture, and Resistance: ”Protecting indigenous cultural and intellectual property under Western intellectual property principles is virtually impossible because of intellectual property law's inherent incompatibility with indigenous ideologies and precepts.”[15] Aloha means “to share,” which ironically goes against the inherent purpose of a trademark.

These cases echo a history of blurred lines surrounding the ways in which trademark law has facilitated cultural appropriation. One of the most notorious examples is Disney's live trademark of the Swahili phrase "Hakuna Matata" for the purpose of  "T-shirts" and other merchandise. [16] The phrase is as ubiquitous as saying "good morning" in Swahili, though it is considered specific or fanciful enough to merit protection in the United States. Many have called Disney's trademark a form of colonial exploitation. [17] More recently, Kim Kardashian met massive backlash after announcing the release of her new intimates line, "Kimono." Her announcement even drew the attention of the mayor of Kyoto, Japan, Daisaku Kadokawa. He wrote: "We think that the names for 'Kimono' are the asset shared with all humanity who love Kimono and its culture therefore they should not be monopolized.” [18] Kardashian has since decided to rename her clothing line. 

The strength and validity of a trademark is evaluated by a distinctly Western mindset that fails to recognize the ideologies of indigenous populations. In other words, a trademark that merits protection through our legal system may be considered generic by a marginalized group. This disconnect is what made it possible for Zach Frielander to trademark “Aloha” and “Poke” while remaining oblivious to the true meanings of both words to native Hawaiian culture. In trying to protect his assets, Frielander misappropriated what should have never been considered his. 

[1] Rosenberg, Eli. “A Midwestern Chain Told Hawaiians to Stop Using 'Aloha' with 'Poke,' Igniting a Heated Debate.” The Washington Post, WP Company, 30 July 2018, www.washingtonpost.com/news/food/wp/2018/07/30/a-midwestern-chain-told-hawaiians-to-stop-using-aloha-with-poke-igniting-a-heated-debate/?utm_term=.4e29df46800f.

[2] “Protecting Your Trademark: Enhancing Your Rights Through Federal Registration.” Basic Facts About Trademarks, United States Patent and Trademark Office, 2019, 

[3] Ibid.

[4] Ibid.

[5]  “Aloha Poke Co. - Over the Past 48 Hours, a Significant...” Aloha Poke Co. - Over the Past 48 Hours, a Significant..., Facebook, 30 July 2018, www.facebook.com/Alohapokeco/posts/2162695770681984.

[6] Ibid.

[7] Fung, Alyssa. “Aloha Poke Co. - Over the Past 48 Hours, a Significant...” Aloha Poke Co. - Over the Past 48 Hours, a Significant..., Facebook, 30 July 2018, www.facebook.com/Alohapokeco/posts/2162695770681984.

[8] Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976).

[9] Ibid.

[10] San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987).

[11] Ibid.

[12] United States, Congress, Trademark Federal Statutes and Rules August 2019. USPTO, 1946. United States Patent and Trademark Office Congress.

[15] Lindsey, R. Hokulei. "Reclaiming Hawai'i: Toward the Protection of Native Hawaiian Cultural and Intellectual Property." Indigenous Peoples' JL Culture & Resistance 1 (2004): 110.

[16] Gharib, Malaka. “Swahili Speakers Debate Disney's Trademark of 'Hakuna Matata' For T-Shirts.” NPR, NPR, 14 Dec. 2018, www.npr.org/sections/goatsandsoda/2018/12/14/676703629/swahili-speakers-horrified-by-disneys-trademark-of-hakuna-matata?t=1563977701607.

[17] Ibid.

[18] CNN, Lianne Kolirin and Gianluca Mezzofiore. “Kim Kardashian Kimono Lingerie Line Sparks Japanese Anger.” CNN Style, 26 June 2019, https://www.cnn.com/style/article/kim-kardashian-kimono-intl-scli/index.html.