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Pot Shots: Cannabis Businesses Can’t Seem to Stop Toeing the Trademark Line

In Culture
UNFAIR TRADE: Candy giant Wrigley filed a trademark infringement lawsuit this month against Terphogz claiming its Zkittlez strain is a ripoff of Wrigley’s Skittles candies. Photo courtesy of U.S. District Court

UNFAIR TRADE: Candy giant Wrigley filed a trademark infringement lawsuit this month against Terphogz claiming its Zkittlez strain is a ripoff of Wrigley’s Skittles candies. Photo courtesy of U.S. District Court

Cannabis is, and will likely continue to be, one of the most regulated industries in America, so it is astonishing to see some people stomp into it, giving apparently zero thought to the legal ramifications of their decisions.

Heedless companies violate zoning laws and locate weed farms next to schools or disregard tax rules. Some companies ignore state and local laws and ordinances that govern testing, packaging and store security. 

But the most perplexing, and often funniest, mistake they make is hijacking a well known, non-cannabis, trademarked brand for their own use. It’s perplexing because it’s so obviously wrongheaded, but also because it has happened so often, it seems like people should know by now to steer clear. 

But they don’t. 

In the latest case, candy giant Wrigley filed a trademark infringement lawsuit this month against Ukiah-based outfit named Terphogz claiming that the latter company’s Zkittlez strain is a ripoff of Wrigley’s Skittles candies name. Wrigley became aware of the company when it discovered that illicit edibles were being marketed under the “Skittles” brand, as well as Life Savers and other Wrigley nameplates. There’s no indication that the Zkittlez cannabis strain was used to make candies, but the name alone was enough to put the company on Wrigley’s radar. 

Terphogz doesn’t make edibles (as it pointed out on its Instagram page in response to the lawsuit) but the Zkittlez strain is highly popular and award-winning and its name is rather obviously based on the candy brand. It seems likely it will have to be renamed, joining a large and growing club of renamed products due to the threat of a lawsuit.

Naming strains of weed based on corporate trademarks, like Kool-Aid, or the names of celebrities and trademarked characters, like Cheech & Chong and Luke Skywalker, was fairly common in the pre-legalization years. But by definition, the people doing the naming were working in the underground. It’s quite a different thing to do that when you’re a registered, licensed business with a marketing budget and seizable assets. Nonetheless, it keeps happening.

In 2014, another candy giant, Hershey, sued a company called Tincture Belle for blatantly ripping off Hershey’s branding. It copied the package designs and logo styles of different candies, including Reese’s (for the edibles brand “Hashees”), Twix (for “Twigs”) and Heath bar (for “Hasheath”). Tincture Belle had to pull all the products from the market and destroy all the packaging. 

In 2017, Nevada-based GG Strains agreed to stop branding its weed “Gorilla Glue” after being sued by the adhesives maker. 

Perhaps the most famous case is that of the strain once marketed by the name Girl Scout Cookies. The Girl Scouts of America put a stop to that, but only after the strain had become globally renowned. It now goes by GSC, or Cookies, the latter term also being the name of the company that made it, run by Gilbert Milam Jr. (best known as Berner). Cookies dispensaries exist around the Bay Area and across California, as well as in several other states.

There are substantial differences among these cases. 

Other than using the name, Girl Scout Cookies didn’t really try to trade off the GSA’s branding the way Tincture Belle had aped Hershey products. Also, the name change came soon after the GSA cried foul. Of course, that was fairly easy, since the strain was already mega-popular.

And it could possibly be argued that there isn’t any harm in a cannabis strain named Zkittlez. 

Wrigley, rather ludicrously, declared in its lawsuit that “the public…believes that Wrigley approves the Zkittlez goods being peddled by Terphogz.” But that might not hold much water in a court of law, especially given that Terphogz marketed the strain using Wrigley’s famous slogan: “Zkittlez, The Unique Cannabis Strain That Lets You Taste the Rainbow.”

But such lawsuits, if pursued full-tilt, could conceivably bring down defendant cannabis companies that try to toe the trademark line. 

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