.Name Check

The quizzical co-optation of confections by the cannabis industry

Given that cannabis is, and will likely continue to be, one of the most regulated industries in America, it might seem astonishing to witness how many people stomp into it while giving apparently zero thought to the legal ramifications of the decisions they make. Heedless companies violate zoning laws by locating weed farms next to schools. They disregard tax rules. They 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 happens so often, it seems as if even people given to lifting trademarks 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 Terphogz, claiming that the latter company’s Zkittlez brand is a ripoff of Wrigley’s Skittles candies. 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 any of those candies, but it 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, as well as being rather obviously based on the candy brand. It seems likely it will require renaming.

In this, it will become part of a large and growing crowd. 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 different doing this when you’re a registered, licensed business with a marketing budget and seizable assets. Nonetheless, it just keeps happening.

In 2014, another candy giant, Hershey, sued a company called Tincture Belle for blatantly ripping off Hershey’s branding. Tincture Belle copied the package designs and logo styles of a bunch 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 as well as destroy all the packaging.

In 2017, GG Strains, of Nevada, 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 became globally renowned. It now goes by GSC, or Cookies, the latter term also being the name of the company that made it, which is run by Gilbert Milam Jr., best known as Berner. There are Cookies dispensaries 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 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. But such lawsuits, if pursued full-tilt, could conceivably bring down the defendant companies.

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 such a defense wouldn’t hold much water in a court of law, given that the Terphogz marketing slogan—“Zkittlez, The Unique Cannabis Strain That Lets You Taste the Rainbow”—is such a highly customized version of Wrigley’s own famous slogan.

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