This past June, Hershey filed a lawsuit in Colorado Federal Court against TinctureBell, LLC and TinctureBelle Marijuanka LLC- two companies that marketed cannabis-laced chocolate bars that were allegedly packaged to look like Hershey products. The causes of action listed in the complaint were: trademark infringement, trademark dilution, false designation of origin, unfair competition, and passing off. The candies included “Hashees” peanut butter cups, and are packaged similar to Reese’s Peanut Butter Cups. The Defendants’ Ganja Joy bars appear to look similar to Almond Joys, and lastly, their HashHeath Bars appear to look identical to Hershey’s Heath Bars.
The lawsuit settled relatively quickly for unknown reasons. If Hershey proceeded with litigation under its trademark infringement claims, it likely had a strong case under 43(a) of the Lanham act. For starters, at the present time, federal trademark law does not yet protect any marks for cannabis products under the Controlled Substance Act (CSA), and further cannabis is still classified as a schedule 1 drug. Additionally, the Defendants products at issue like “Hashees” very much resembled the look of Reese’s. Accordingly, it’s not far-fetched to conclude that a Court may hold that the Defendants were diluting Hershey’s marks by associating a child-friendly and world-wide brand with getting high.
According to The Denver Business Journal, “[t]he settlement between Hershey and TinctureBelle requires the Colorado retailer to ‘destroy all remaining specimens of each product, including without limitation cartons, containers, packaging, wrappers, labels, displays and any other materials …’ TinctureBelle is also prevented from ‘making any false or disparaging statements about Hershey and its products.’” However, the settlement will not have any impact on TinctureBelle’s current products, as the owner of TinctureBell, Char Mayes claimed to have “changed our entire label line approximately six months ago, long before these allegations surfaced.”
The future of trademark protection for cannabis goods is fluid and changing, but even if it is given full trademark protection one day, “canni-preneurs” will not be protected if their packaging confuses the public and dilutes existing brands. Every startup company should strive to create their own, unique, and identifiable brand. As the memorable marketing campaign by Apple once said, “Think Different.”