It seems that my recent post featuring our BONELESS ZUBUCHON or ZUBULIEMPO (they are exactly the same product, just renamed) along with two newspaper ads featuring the same announcement have upset folks whose family also appear to be in the roast pork belly business. It upset one of their family members so much that he publicly posted on our new ZUBUCHON Facebook account, and on his own personal Facebook account, a write-up that included the following words and photos, and I quote verbatim from his Facebook posts that were captured by my office staff with screenshots and saved as evidence (he took down his post from our Facebook site hours later, but it remained on his Facebook page):
- an admission that he is writing the post to “cause mayhem” and further writes “Being the analytic and war-loving 18 year-old that I am, I will now cause some chaos.”
- he claims that “the boneless pig belongs to my family, right? We made it first, right?”
- he accuses Zubuchon of copying their product, and I quote: “ZUBUCHON is now /copying/ the Boneless lechon. Copying? That’s such a strong word! It is. But it seems to be the truth.”
- he presents as his primary piece of evidence a photograph of our ZUBUCHON menu when we opened our stores, and points out that there is no Boneless ZUBUCHON on the menu, but fails to acknowledge that there is indeed and always has been a ZUBULIEMPO on the menu, on two separate pages. As is plainly obvious from the photos he himself provided.
- He specifically maligns ZUBUCHON and/or its owners/managers/staff members by writing by directly referring to us as liars, and I quote: “What beautiful liars these flying pigs are!”
- He asks Zubuchon to provide evidence, presumably that we have had a boneless belly, boneless Zubuchon, boneless liempo, rolled pork belly, etc. since we opened our stores in June 2011, by writing (sic) “You should have cleared evidences first.”
- He clearly indicates his full name and that of his family in several parts of this Facebook posts and directs his ire specifically at Zubuchon management and Marketman.
Before I respond to the main issues, let me just say I am not a lawyer, but I do understand some basic legal terminology. To be absolutely certain, I passed this post through my personal and our corporate lawyers for their review before I chose to publish it. I did not write this post in a quick AND heated response to an inappropriate and offensive Facebook post — it took some time, deliberate thought, and a legal review.
Ultimately, it is for judges to decide what constitutes libel. From my layman’s perspective, I understand that there are four key elements necessary for libel to be present:
(1) Imputation of a discreditable act or condition to another. For example calling someone a liar, a fraud, forger, copycat, etc.
(2) Publication of that imputation. For example, I gather, in a newspaper, public announcement, internet page (facebook, twitter), etc.
(3) Identity of the person or company defamed. For example, ZUBUCHON, Mr. Zubuchon Executive, Marketman, etc.
(4) Existence of malice. Actually in all cases of libel, malice is assumed, unless it is proven otherwise.
So that is the setting, let’s get to the meat. Before the appearance of the Facebook posts that specifically name and accuse Zubuchon and/or Marketman of lying, copying, etc., I had never once mentioned that family’s brand of pork products in any of my marketmanila.com posts nor advertisements of Zubuchon and in any company related materials. I most certainly have never directly accused them of anything good or bad.
Now for Marketman and in this case, “Mr. Zubuchon Executive’s” response to the issues raised:
(A) CRITICAL ISSUE # 1: WHAT IS THE PRODUCT UNDER DISCUSSION AND WHAT CONSTITUTES “ORIGINAL” AND “FIRST” IN THE MARKET?
For me, the obvious crux of the matter is : WHAT is THE PRODUCT or ITEM being discussed? (not the name just yet, but the underlying product):
In this case, it is probably adequately described as (technically) “half of a pig’s belly section (local terminology liempo), with skin on, with the pork ribs removed (hence boneless) that stuffed with various herbs, spices, vegetables, etc. and rolled around a metal spit, or other material such bamboo or wood then roasted over coals or in an oven/rotisserie”.
Anyone with reasonable knowledge of food in a macro context would have recognized that this kind of dish is NOT an “original” creation (defined as: “preceding all others in time, or that from which a copy is made” – Merriam Webster), rather it is a very likely a derivation of an Italian “porchetta“, or a boneless pork belly that is spit roasted stuffed with herbs. Porchetta also refers to literally a boneless suckling pig that is stuffed with herbs and spices and roasted. There are hundreds of examples and photos of this rolled pork belly dish on the internet alone, not counting dozens of cookbooks, magazine articles, food journals, etc. In other words, there is sufficient and easily accessible evidence that this is a fairly recognizable dish, and most certainly not recently invented nor created. So it would be difficult and probably inaccurate to be truthful if anyone were to CLAIM that they were the one who invented/created/originated the first rolled boneless pork belly anywhere in the world, the Philippines or even just Cebu City, for that matter.
There are links here, here, here, here, and here that show clear photos of this basic product in many parts of the world. Porchetta has existed for many, many years before the Cebu company claims to have created, conceptualized, innovated or invented it. Again, I stress the underlying dish of rolled roasted pork belly, not the name. And if I am not mistaken, recipes CANNOT be copyrighted. But cookbooks (or the prose) can be copyrighted and brand names registered and protected. Brand names can be trademarked and registered, but pass scrutiny only if, among many other requirements, they do not “consist exclusively of signs that are generic for the goods and services they seek to identify”.
Now as for the claims of originality and invention put forth by the Cebu company, I show a portion of their own website page:
They specifically claim, and I quote: “We are the First in this ingenious technique to prepare, process and slow-roast a whole pork belly/side of a pig and produce this remarkably delicious…”
In another blog (everythingcebu.com), screen shot above, where the product was featured, they give further details and presumably mirrors the claims of the company, and I quote: “It is called Cebu’s original Lechon Belly, and the technique for producing it was actually conceptualized back in August 2011, by xxxxx xxxxx, a proud Cebuano. The product was registered with the Philippines’ Department of Trade and Industry early in 2012.”
To summarize their claim, their lechon belly was conceptualized in August 2011 and registered at the DTI in early 2012. They also clearly claim to be the first with this ingenious technique. In the Facebook page below, the accuser specifically states: “The Boneless pig belongs to my family, right? We made it first, right?”
HERE IS MARKETMAN’S/ZUBUCHON MANAGEMENT’S RESPONSE:
It’s quite obvious from the many links provided that this product is nothing more than a derivation of an Italian porchetta, and is by no means absolutely “original” nor probably “patentable”. Even if you want to keep comparisons limited to the Philippine Islands, and more specifically, Cebu City, ZUBUCHON has had a VERY SIMILAR product on offer since we opened our restaurants in June 2011, originally called ZUBULIEMPO (translated: Cebu Pork Belly) that was made with a half pork belly, boneless, and stuffed with local herbs and spices and roasted on bamboo and slow-roasted over charcoal flames and now referred to as BONELESS ZUBUCHON. ZUBUCHON and its logo are fully registered trademarks. Our restaurants opened June 2011, well before this other company claims to have been first with the technique and product and long before they thought to register their brand name in February 2012.
Here are several pieces of “evidence” that support my assertion that Zubuchon/Marketman made this rolled boneless pork belly roasted over coals since at least June 2011 and that we could NOT have copied it from this specific other Cebu company, because we were making it well before they ever sold or introduced their similar product to the public!
1. On 12 September 2008 (almost three years before we opened Zubuchon restaurants!), in Manila, I (Marketman) prepared and wrote about and posted this blog post “Porchetta a la Marketman” – essentially a half boneless pork belly that was stuffed with classic Italian herbs rolled and tied up and roasted in a hot oven. I acknowledged in that post the inspiration was a recipe from the BBC website, and from an Italian aunt who has prepared porchetta in this manner for several decades.
2. On 04 November 2009, I (Marketman) wrote a post on Porchetta, a small sandwich shop in New York, which had received rave reviews for its roast boneless pork belly sandwiches, just another reference point in the timeline of product development.
3. On 13 February 2010, Marketman wrote and published this post entitled “Liempo on Bamboo a la Marketman” which was inspired by what someone described to me as the Balamban Liempo, which I had never tried at that point. This experiment was very close to the future ZUBULIEMPO and BONELESS ZUBUCHON, in that it was stuffed with herbs and spices, including garlic, lemongrass, salt, pepper, star anise, chilies, oil, sugar, soy sauce, etc.
4. In June 2011, the first ZUBUCHON restaurant opened with ZUBULIEMPO on our menu, in fact, on BOTH SIDES of the MENU, as a platter order priced at PHP380 for less than one kilo in weight. As the photos of the menu below indicate. We also had it on the menu as ZUBULIEMPO FAST MEAL priced at PHP90 when we opened in June 2011.
And just in case you are skeptical about our listed timelines, check with the date stamps on the internet, or with the thousands of markemanila.com regular readers who can vouch that these posts above did indeed appear on the dates stated. But even if you ignore the references above from marketmanila.com, and ONLY assume that we introduced ZUBULIEMPO or our version of “rolled and roasted boneless pork belly” in June 2011, here are several other third party reference points to prove that this item was indeed on our menu from Day 1.
• A blog post, by “Lee”, with clear photos of our blackboard menu offerings, including ZUBULIEMPO dated 5 July 2011, just a few weeks after we opened, here
• Another third party blog post dated 19 September 2011 that mentions Zubuliempo, with a photo and I quote: “My main course was Zubuliempo. I have overlooked this pork dish during my previous visits since I was too caught up with the quirky ones. Liempo is practically everywhere, right? I didn’t expect much from this dish but to my surprise, it was really really yummy. The meat was flavorful, it gave my arteries a run for their lives in all its porky goodness. It was not dry, very tender to the bite but the skin was crispy. How the hell did they do that?”
• Another blog post by food blogger “Noemi”, dated 2 October 2011, with clear photo of our roasted rolled pork belly or ZUBULIEMPO beside our ZUBUCHON, and she wrote “I noticed the Zubuliempo (380 pesos), pork belly cooked Zubuchon style.”
• A great flicker photo from a third party dated 18 December 2011 which clearly shows our Zubuliempo described and drawn on our menu blackboards, and I quote: “MUST TRY ZUBULIEMPO Prime Pork Belly Roasted Zubuchon Style With Flavorful Herbs and Spices” and a drawing of the rolled belly below.
• Another mention by a third party blog post on 28 February 2012 that talks about the boneless belly:
• Not convinced? Then go to this page of photos here that shows dozens and dozens of reference photos to the Zubuchon boneless pork belly inside and out, cooking and cooked, in experimentation stage or ready to eat. They span dates for several years back.
MARKETMAN’S/ZUBUCHON MANAGEMENT’S CONCLUSION: We definitely introduced our “ZUBULIEMPO” later renamed “BONELESS ZUBUCHON” on June 16, 2011 when we opened our ZUBUCHON restaurant at One Mango Mall, and it has been on our menu every since. The product is a half pork belly, boneless, with various spices inside, wrapped into a roll on a bamboo pole, and slow-roasted over charcoals until cooked. We have served it sliced and on a serving platter for PHP380 for a weight less than a kilo. We also served it as a “ZUBULIEMPO” AND “BONELESS ZUBUCHON” FAST MEAL. Since we believe we have clear proof and several points of evidence that we had such a product on our menu MONTHS BEFORE the other company introduced their very similar product, we would conclude that WE DEFINITELY COULD NOT HAVE COPIED THEIRS, as we had ours on offer long before they sold their version. And that’s just the product in question, not the even the name.
MARKETMAN NOR ZUBUCHON HAVE NEVER EVEN CLAIMED THAT THEY OR ANYONE COPIED OUR ZUBULIEMPO or BONELESS ZUBUCHON, AS WE HAVE NO IDEA WHERE THEIR INSPIRATION FOR THEIR PRODUCT CAME FROM, BUT IT APPARENTLY WAS NEITHER ORIGINAL, NOR WAS IT THE FIRST IN CEBU!
So referring to the Facebook post of which a section of a screenshot is shown above, where the other company claims they made it (boneless pig, belly or lechon) first? WE BELIEVE THAT IS FALSE. That they “own” it? WE BELIEVE THAT IS FALSE, for how can one “own” a recipe that exists in so many versions all around the world? That Zubuchon is copying the Boneless Lechon? FALSE. How can we copy something that we made and offered to the public for sale several months before they claim to have conceptualized it in August 2011 and registered it in early 2012? And a product that Marketman had been experimenting with for SEVERAL YEARS BEFOREHAND?
(B) CRITICAL ISSUE NUMBER #2: WHAT’S IN A NAME?
So far, we have addressed the underlying PRODUCT in question, so now it’s time to address the name. At Zubuchon, we originally named our boneless lechon belly “ZUBULIEMPO” and had that on our menu for many months. “ZUBU” is the old name of Cebu in 16th century maps, and “liempo” is the Filipino word for pork belly. So the literal translation for ZUBULIEMPO would be “Cebu Pork Belly”. After several months, and with a lot of customer feedback, we were told that some customers assumed ZUBULIEMPO had bones, which it does NOT, as other roasted “liempo” products on the market frequently have bones. That is why we decided to change the name recently to BONELESS ZUBUCHON. For us, it is more descriptive, and more importantly, ZUBUCHON is a registered trademark of the company (we first registered it in 2009), so it would be difficult for anyone to copy our new name, BONELESS ZUBUCHON.
But it gets better than that. The “other” company accuses us of copying their “Boneless Lechon,” and they give as evidence our menus that only list ZUBULIEMPO and not the recent name BONELESS ZUBUCHON. First of all, Boneless Lechon and Boneless Zubuchon are obviously different names, and ZUBUCHON is a registered and trademarked name/logo that precedes that company by several years. Zubufoods, Inc. and the brand name Zubuchon were first established and registered in the third quarter of 2009. Furthermore, “Cebu’s Original Lechon Belly – The Boneless Lechon” which I gather is their official name (but I cannot be certain of this, it is an assumption on my part) and I can only say that the name is a mouthful of common words rather than say a unique brand/name. “Cebu” is the name of the province and often used. “Original” is a term that I showed above does not apply to their product. “Lechon” is a common word used by thousands of purveyors in the province and throughout the Philippine archipelago, if not beyond. “Belly” is a common cut of pork (and other) meat. And believe it or not, the phrase “boneless lechon” has been used before, IN FACT, SEVERAL TIMES BEFORE. Ms. Fores of Cibo and her catering business has offered a porchetta or boneless lechon on their menus for many years. Lydia’s Lechon in Manila has a product named “Boneless Lechon” and the best part of all, Marketmanila.com also used the two-word phrase “Boneless Lechon” in this 13 February 2010 post here: http://www.marketmanila.com/archives/liempo-on-bamboo-a-la-marketman
And I quote myself: “If you can’t make a lechon in your backyard in Vancouver, San Diego, Tampa or Tupelo, this is definitely a version that can be done on a Western barbecue or grill. Served with a variety of sawsawans, this was a BIG HIT. Less hassle than a lechon, all laman (meat no bones), and both crisp skin and tender meat within. Think of it as a “boneless lechon”.
MARKETMAN’S/ZUBUCHON MANAGEMENT’S CONCLUSION: Our renamed ZUBULIEMPO, now called “BONELESS ZUBUCHON” is neither a copied nor similar name to any other product on the market. That we chose to change our name FOR the exact same underlying dish/product, a rolled slow-roasted boneless pork belly, which we introduced before their version hit the market, is NONE of our competitors business and for them to assert that we copied both the product and the name is simply ludicrous and unsupported by facts.
WE HAVE NO IDEA IF OUR COMPETITORS HAVE EVER SEEN MARKETMAN’S POSTS REGARDING BONELESS LIEMPO AND RELATED DISHES OR EVEN MARKETMAN’S POST THAT REFERRED TO THE PRODUCT AS A “BONELESS LECHON” AND HAVE NEVER ACCUSED THEM OF COPYING THE NAME. BUT FOR THEM TO ACCUSE ZUBUCHON THAT WE ARE COPYING THEIR PRODUCT AND NAME WHEN OUR PRODUCT CAME OUT FIRST AND THE NAME ZUBUCHON IS TRADEMARKED, IS SIMPLY LUDICROUS!
In the Facebook post that accuses Zubuchon of lying and copying, the writer shows photos of our menu, and I have encircled and put an arrow where our Zubuliempo was clearly visible.
And again, on another page, where our ZUBULIEMPO fast meal was clearly indicated. And it was the author that claimed these were original menus from the time we opened. So he has just proven to us and himself that we had ZUBULIEMPO (later named BONELESS ZUBUCHON) from the first day we opened the restaurants.
The end of the Facebook post on June 15, 2012, above, note areas I have highlighted in red, for you to read and reach your own conclusions.
Oddly, a MONTH before the current June 15 Facebook post, on the website of the company under discussion, they posted this warning below. Note the “created and patented this 12 Febrauary of 2012” — that was several months after ZUBUCHON opened in Cebu! And as I said, I wasn’t aware you could patent or copyright a recipe, and I still don’t think you can and shall inquire with the DTI how to challenge such an assertion.
The Facebook post made clear accusations that Zubuchon/Zubuchon Management was lying and copying from their company. The author also asserts that he doesn’t care what the consequences of his writing the Facebook post are. He asks Zubuchon to provide evidence (presumably that we had the product first, and that we didn’t copy their company’s name/product name). He asserts that they came out with the product first, that they invented it and owned it. He clearly asks his/their supporters to spread the word. And he published said article not only on his own Facebook page, but ALSO PUBLISHED IT ON ZUBUCHON’S VERY NEW FACEBOOK PAGE, an entry which he apparently deleted himself only a few hours later, but not before our office staff managed to get screen shots of his posts. The same posts remained up on his Facebook page for several days and was still posted as of 18 June 2012.
I take accusations of lying and copying VERY SERIOUSLY. I am quite well known on my blog marketmanila.com, and in person, for being vehemently against plagiarism, photo-napping, or violations of copyright and trademark laws. I have written several posts on related matters. I believe in being responsible for my actions and hope that others are as well. Zubuchon and I (Marketman) intend to pursue our legal rights to the fullest extent possible and are already conferring with our corporate lawyers. Libel is a serious issue, and in the Philippines, it remains a criminal offense.
“Hoisted by his own petard” is a favorite cliché of mine. And no, it doesn’t literally mean to be given enough rope to hang one’s self. Instead, the essence of the cliché is that “one is ruined by his own devices” — perhaps including one’s scurrilous accusations published in Facebook posts.
Our lawyers will be communicating with the author of that Facebook post in the next few weeks.
Zubuchon Executive (President)
P.S. To Marketman’s regular readership, and any new folks who drop by to read this post, please exercise extreme caution and good judgment before leaving any comments on this post. I will exercise my prerogative to delete any comments that seem inappropriate, and since legal action is potentially being contemplated with respect to this issue, I implore all of you to be circumspect and thoughtful in your comments. Please do not resort to any name calling, personal attacks, etc. Also, I may opt to only allow comments in from readers who have already previously left comments on this blog and who have left functioning email addresses along with their comments. I realize that this may surprise some new visitors and commenters–but it is my blog, and I choose how to manage it as I see fit. Finally, for parents with teens and young adults who are frequent users of the internet, social networking sites, etc., please feel free to use this post as a teaching tool, to discuss the issues of libel and the potentially serious consequences (civil and criminal liability) of items they may choose to publish on their accounts. Thank you.