New Mexico green chile is not classified as quotHatchquot unless it39s grown in a specified area

New Mexico green chile is not classified as "Hatch" unless it's grown in a specified area.

Hatch chile growers get support from federal court

NM Chile Association turns uip heat to protect Hatch identity Chile acreage declining  

A growing number of food experts and green chile aficionados in New Mexico say the famous Hatch Valley green chile is a sacred food and has earned legendary status. They claim the beloved chile is produced "in a sacred Valley" where soil, climate and "sweet water" combine to create a flavor unmatched by any other fruit or vegetable.

While it could be argued that love of the state's favorite food product may be more a matter of pride than legend, there is little doubt the flavorful Hatch chile has gained widespread notoriety in culinary circles and has quickly become a favorite among food fans across the entire Southwest region and beyond.

So popular has the chile become in recent years that chile producers of the Hatch Valley have complained about the growing number of imitation varieties that claim to be "Hatch" chile but are grown in other states and even in Mexico, Honduras, and other Central and South American countries. They claim these producers often use the Hatch brand to reel in consumers under false pretenses by attempting to muscle in on the growing popularity of the original Hatch brand while offering what they term "inferior chile products."

So great the fear the Hatch brand was under pressure by imitation chile varieties, New Mexico state lawmakers adopted an interesting law in 2011 designed to ensure that only green chile that is truly New Mexican in origin may be advertised as such within the state. This law illustrates the importance of the "Hatch" chile crop to the State of New Mexico. Lawmakers argued the law was designed to help "ensure truth in advertising."

Two years after enactment, the law was amended to strengthen the Hatch brand even more against chile suppliers in and out of state who were labeling their products as Hatch chile though some of their product originated elsewhere. According to the New Mexico Chile Association, the law has had a positive impact on the Hatch chile brand.

FEWER ACRES

While facing many challenges and hardships in recent years, Hatch Valley growers have cut back on the number of acres of chile planted and subsequently the volume of chile produced, largely because of water issues caused by drought but also because of a shortage of farm labor related to immigration issues. Chile is a crop that traditionally requires hand picking to protect the delicate fruit from bruising. But finding adequate numbers of farm laborers, especially in the face of tougher farm worker regulations has, in recent years, caused many acres of chile to over-ripen or ruin in the field.

While some growers have turned to alternative crops like cotton to keep their farms running, pride runs deep among chile producers in the Hatch Valley, and most chile growers there remain committed to producing the state's favorite food product in spite of multiple challenges.

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But tough times continue for the struggling industry, and it may be the reason that Hatch Valley growers have recently stepped up their fight to protect their brand. In recent months contention between a national chile producer and a group of Hatch Valley farmers and the New Mexico Chile Association over the use of the Hatch brand has been making headlines. Hatch Valley growers say they are challenging a national chile company over the use of the name "Hatch" used on cans of green chile products sold at grocery stores nationwide.

Hatch Chile Co., a group that was founded in Albuquerque in the late 1980s by Steve Dawson, says they purchase their chile from a New Mexico supplier and have used the trademarked brand "Hatch Chile Company” for many years. Dawson still oversees production of the iconic yellow cans seen at grocery outlets from coast to coast. The company has grown in size and status and now also has offices in Texas and as far away as Georgia.

Growers in the Hatch Valley fired the first shot last year when they attempted to trademark the “Hatch” name with the U.S. Trademark and Patent Office. They wanted to limit use of the term “Hatch” to only green chile grown in the famed region of New Mexico. Hatch Valley producers define the "magic valley," as an area they define as stretching from the Caballo Dam for about 35 miles south and ending just north of the Leesburg Dam, which also encompasses the Uvas Valley.

In the battle for trademark rights to the Hatch brand, the Hatch Chile Company did garner some support from the New Mexico Department of Agriculture (NMDA) when they received the nod last year to label certain products with a notice that claimed the product was grown with the "taste and tradition" (of New Mexico). State agriculture officials argued the statement does not violate the state's logo use guidelines.

But Hatch Valley growers and officials of the New Mexico Chile Association say federal certification marks would limit chile producers and suppliers from designating their products as “Hatch” if the product was grown in the Hatch Valley, and they say that appeared to be set for federal approval in July last year until the Hatch Chile Company filed papers opposing the trademark certification.

INTELLECTUAL PROPERTY RIGHTS

Hatch Chile Company officials say a certification mark "infringes on intellectual property rights" and they argue the company has been operating as Hatch Chile Company for more than 30 years. Under terms of the proposed certification trademark requested by the New Mexico Chile Association, company officials argue they could be required to change that. 

Dawson argues that he buys his chile from Border Foods, a New Mexico company, and that the chile being used in his products are in fact grown in New Mexico. But officials of the New Mexico Chile Association argue that by using the term Hatch in the name of the company, it implies the chile used in the product originates from the Hatch Valley.

Late last year a district court ruled in favor of Hatch Chile Company's argument that by disclosing information about where their chile is grown could infringe on proprietary information that constitutes intellectual property, and that such a move might be viewed as giving an unfair advantage to the company's competitors.

But on June 17 (2016), the U.S. 10th Circuit Court of Appeals ruled in favor of the New Mexico Chile Association and allied Albuquerque food distributor El Encanto in their efforts to subpoena records from the Hatch Chile Company that may indicate whether their products contain purely Hatch-grown chile.

The panel of three federal judges noted Hatch Chile Company initially said it did not know where its chile originated and referred the question to its chile supplier. When a subpoena was issued asking about the origin of its green chile, both Hatch Chile Company and their supplier filed successful motions to block the request in federal court.

Legal representatives of Hatch Chile Company deferred comment because the litigation is still pending, and parties close to the chile association and a group of Hatch Valley chile producers say they are anxiously awaiting the company's next move. They say they remain hopeful that eventually trademark certification will be granted by the federal trademark and patent office.

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