It’s 4/20 and pot smokers everywhere are rejoicing because cannabis is more legal than it has been in 75 years.
Four states and Washington, D.C., have legalized recreational marijuana, another 23 have legalized medical use, and the cannabis business is starting to gain traction among serious investors like PayPal founder Peter Thiel and, um, Snoop Dogg.
1. The Dabbucino Pipe
So has weed completed its transition from black-market hippie to corporate sellout?
Not quite. The marijuana industry in America is making money hand over fist while negotiating an ever-changing patchwork of laws and local statutes. When very few cannabis brands have managed to establish themselves as reliable, the easiest thing for an aspiring pot baron to do is make visual reference to a more famous product, logo, or company.
2. Dabblicious T-shirts and extracts
If weed is already federally illegal, who cares about a little trademark infringement?
Well, Hershey's did. Last year, the chocolates giant sued a Colorado marijuana edibles company that was making products like "Ganja Joy," "Hasheath," and "Dabby Patty" that looked suspiciously like Almond Joy, Heath bars and York Peppermint Patties. Although that company settled with Hershey's for an unknown sum, many other pot brands have yet to come around to the fact that, if and when the rest of the country legalizes, any marketing materials that borrow from established brands will be vulnerable to a lawsuit, said Hilary Bricken, the lead attorney for Seattle's Canna Law Group.
"[A]s states opt out of federal prohibition, we're going to see these large, established corporations start coming after these cannabis companies for infringement," Bricken said in an email. In many trademark infringement lawsuits, those who are using the famous imagery will claim that that their versions are parody, but Bricken said she didn't think many of these products would be able to defend themselves that way.
3. Vader Extracts
"[T]he parody must avoid any likelihood of confusion with the original mark. Most of these cannabis companies don't do that though," Bricken wrote.
"In fact, in the case of Girl Scout Cookies, [a popular strain of marijuana], most cannabis companies very much want consumers to associate the strain/cannabis product with the popular, well-known, great tasting confection."
Mark McKenna, an associate dean and law professor at the University of Notre Dame, said that companies making T-shirts with characters like Mickey Mouse or Fred Flintstone smoking weed might be able to defend themselves under trademark law's parody exception, but that anyone using those logos to advertise their stores or sell actual products could be in trouble.
"[Cannabis businesses] are going to have to play by the same rules that everyone else does in commercial regulations. Trademark owners tend to be pretty aggressive about these things and I suspect in some of these cases people will get sued," McKenna said. "There's also what's called trademark dilution, a branch referred to as 'tarnishment,' where you're using some mark with goods that people worry would give a negative connotation to the mark."