Did you know that the can of Coca Cola you are holding has a color and logotype that is trademarked? Or that you cannot use Tiffany blue on any product? Even that yummy Cadbury bar has its own shade of purple.
Most of us live our lives without thinking about intellectual property; we grab our smart phones, put on our favorite athletic wear and jump into our hybrids.
But did you know just about any product you use is covered by copyright laws? You would never think of using the Nike swoosh on a line of shoes you are manufacturing or taking the design of an iPhone and creating your own line of smartphones. You wouldn’t because someone would say to you eventually, “
By the way, that is so and so’s logo, I really don’t think you can use that.” However in the cannabis industry there is a culture of being underground and transient; there is no one to say “oh man that bar sure looks like a Hershey candy bar” because the industry was in a gray area that created a legal limbo and products were sold at small gatherings or in stores that were also operating in the gray.
TIMES HAVE CHANGED
Twenty-eight states have legalization of cannabis, either medical or recreational; this means money pouring into companies and the rush to market with greater oversight. In the last three years there has been greater enforcement of IP laws against companies that have taken designs lock stock and barrel from major corporations because those companies now can be found via websites and state registries. With greater regulation come rules of conduct that other industries have to adhere to. You would not think of taking an idea from another person and claim it as your own, so why would you appropriate a well known brand? It is one thing to snub your nose at the corporations; it’s another to loose your entire company for doing that snubbing.
CASE STUDIES: PRODUCT DESIGN
One case from 2014 should have sent warning signals out: Tincture Belle vs. Hersheys.
tincture_belle
hersheys-hashees
Tincture Belle appropriated the designs, logotypes of iconic Hershey brands, from Reese’s to Almond Joy. How similar are these names: Hashees, Ganjay Joy, Hasheath or Hasheats to familiar Hershey brands? They did not stop there, they also took the look and feel of each Hershey brand. Tincture Belle settled out of court and agreed to destroy all edibles and remaining packaging.
But it didn’t.
Two months ago I walked into a local dispensary and was perusing the wonderfully designed packages on the shelves, as I walked across the store I noticed a wall of snack chips. My jaw dropped, hit the floor and slapped back into my face; there in front of me was a bag of medicated chips named “Weetos”, the colors, the fonts, the branding was “Cheetos”, also on the shelf was “Fruit Poofs”, from the same company Baked Goods. The next visit to the same dispensary showed the products removed from inventory.
baked_goods_weetos-baked_goods_fruitpoofs
There are two questions here:
Why would a dispensary sell products that are they are liable for copyright damages and
Why would any start up put themselves at risk for civil damages and injunctions?
Baked Goods cannot argue that they did not know they were infringing on Frito Lay’s trademarks, nor could the dispensary.
Cheetos has an iconic look that has millions invested in the branding; and as one of their top brands Frito Lay is going to go after any company that could damage that brand.