Is Aloha Poke Co. Stealing Hawai‘i Culture?

A Chicago store trademarked “Aloha Poke” and is threatening Island businesses. Can Native Hawaiians (and the rest of us) get it back?

By Don Wallace

Photo: Courtesy of Aloha Poke Co.

Chances are you’ve already heard about the Aloha Poke Co. trademark fracas, the latest controversy involving a greedy Mainland corporation snatching away a beloved piece of Hawai‘i’s culture by trademarking “Aloha Poke,” then firing off cease-and-desist notices to local businesses and even one in Alaska owned by a Native Hawaiian.

Cultural identity theft is nothing new for Native Hawaiians or Hawai‘i’s distinctive local culture. But it seems to be getting more aggressive.

Among the businesses that received cease-and-desist letters was Aloha Poke Shop at 1111 Bishop St. When the Jan. 17, 2018 letter from Aloha Poke Co.’s Chicago attorneys arrived, owner Jeff Sampson admits he just ignored it; he opened the business in November 2016.

“How could you trademark aloha? How could you trademark poke?” he told The Guardian.

the aloha special from aloha poke shop in honolulu.

Photo: Maria kanai

Ah, but anybody could, who opens a business and does legal due diligence the way it’s done in Chicago and the rest of the U.S. It turns out that while “aloha” and “poke” by themselves can’t be trademarked, in any combination with any other word, they can. Just as in any gold rush, whoever gets the claim in first tends to prevail in court.

But in Hawai‘i, this just doesn’t feel pono. The word “aloha” is literally our “state spirit” (under Chapter 5 of Hawai‘i Revised Statutes). But this hasn’t prevented businesses from here trademarking it. We haven’t objected to companies bearing names such Aloha Maid Juice (Japanese-owned), Aloha Sunscreens, or Aloha Salads—or to entities such as Aloha Towers and Aloha Stadium. These have registered trademarks and have gone on for years without somehow raising a stink.

SEE ALSO: “Moana” is Turning Culture into Cash—Here’s Why it Matters for Hawai‘i

No, in this case, it’s obviously the combination of “aloha” and “poke” that seems to have lit a fire of indignation—a combination of the heart and belly that sends ripples of umami outrage up and down our spine. Poke has become the latest food craze, not just on the Mainland but now in Europe, Japan and who knows where else. Many locals find this irritating and resent the cultural appropriation. It’s something else we’ve invented (or perfected) only to see its genius washed away by mediocre quinoa-based imitations. Adding in “aloha” and a hard-nosed Chicago law firm and you have a violation of our Island spirit.

The Chicago Aloha Poke Co. was founded by Zach Friedlander. He was in charge when the letters went out, perhaps as early as two years ago. He departed on May 1, 2018 as an experienced CEO took over for the ambitious rollout of outlets (seven in Chicago, others underway in other states). Though his replacement, Chris Birkinshaw, sent him out the door with the classic line about “moving forward in his career,” as founder, marketer and strategist Friedlander has remained in the public’s mind the human face of the company—and now inherits the vitriol.

The outrage is fierce. Online visitors are filling the company’s social media feeds with all kinds of creative, or just blunt, protest posts. A few “Aloha Poke Co.” variants have been cloned, easy to confuse with the official company’s sites. The spoofing hasn’t risen to the level of a denial-of-service attack, of the kind mobilized by hacktivists. The posts tend to often offer impassioned pleas, quotes from Hawaiian activists, definitions of true aloha and reproductions of cease-and-desist letters.

A few can’t resist making Friedlander out as the Al Capone of cubed fish; one suggested he should sleep with the ‘ahi. Anti-Semitism has also surfaced, according to Chicago Eater, due to the fact that Friedlander is Jewish. (The Eater article suspects these unsavory posts may be by opportunistic trolls who have no interest in aloha or poke.)

Our recent cruise through the postings revealed most were on the polite side, at least for the internet. Some even show aloha. But will they work? Change anything? Aloha Poke Co. would seem to have the law on its side.

The company certainly doesn’t help its cause when it advertises on Instagram. One post shows a grass-skirted hula bobble doll with a weird hybrid poke bowl—pineapple, cucumber, green onion, tomato, and crispy garlic—and this kicker: “When all she wanna do for lunch is get naked, then sauced …” As a mindset this is, shall we say, less than classy—kind of Total #MeToo Bro.

A post shared by Matthew Ing (@iammatthewing) on Aug 2, 2018 at 2:13pm PDT

The company may yet back down because of bad publicity. Twitter-shaming has proven effective in certain cases (and sometimes undeservedly). But it’s not really a solution, but a reaction. And given the two-year investment that went into Aloha Poke Co. and its ambitious rollout of outlets, we bet they’ll hold their ground.

SEE ALSO: Disney Pulls Controversial “Moana” Costume Amid Protests of “Brownface”

So what can be done?

Ultimately, there is a higher court of appeal. Under the World Trade Organization and World Intellectual Property Organization, patents and trademarks for the protection of products that have a unique geographical and cultural origin have been granted since 1891. Whoever has the standing and deep pockets to bring a case will have to play a deep game, for the long run. The organization’s own analysis in 2013 found mediation takes eight months and costs $100,000, while to proceed to arbitration takes more than a year and costs $400,000 in lawyer fees.

And those are just for commercial cases. For “aloha” and other Native Hawaiian words, core concepts and expressions—protection can be sought as Traditional Cultural Expressions. The problem is, WIPO is still formulating its platform and process.

The latest session in October 2017 reached a decision to extend and continue its mandate to devise policies and protections of “intellectual property and genetic resources, traditional knowledge and folklore”—including “consideration of … the relationship with the public domain.” That would seem to cover all uses of “aloha” but, these are only sentiments at this point. WIPO has set a 2019 date for a decision whether to convene a diplomatic conference on the subject or, sigh, to “continue negotiations.”

The closest thing we have to a state Native Hawaiian entity, though the title and authority are disputed vigorously by other kanaka maoli groups, the Office of Hawaiian Affairs released the following statement Aug. 1:

The Office of Hawaiian Affairs (OHA) is appalled by the Chicago-based Aloha Poke(sic) Company’s recent attempts to assert control over Olelo Hawaii, the traditional language of the native people of Hawaii.

OHA is currently reaching out to key stakeholders to discuss possible solutions to this immediate controversy. However, the commercialization and exploitation of Native Hawaiian traditional knowledge has been an issue for generations. At the heart of the issue are trademark laws that present substantial challenges for protecting our culture and promoting its pono (appropriate) use.

After similar controversies in 2003, a coalition of Native Hawaiians adopted the Paoakalani Declaration—a powerful statement affirming the Native Hawaiian people’s collective right, as the creators of our traditional knowledge, to protect our cultural expressions from misuse by individuals who behave disrespectfully and inconsistently with our worldview, customs and traditions. Critically, the document declares the willingness on the part of Native Hawaiians to share our culture with humanity, provided that “we determine when, why, and how it is used.”

In a further, surreal twist to the saga, Friedlander’s latest statement defends the company (that he is no longer with) by calling the imbroglio “false news” and “a witch hunt”—echoes of the tribal thumb-songs of our Twittering times.