The hemp and medical marijuana industries are known for having interesting strain names. White Widow, Ghost Train Haze, and Alaskan Thunder (censored), just to name a few. However, one strain in particular may make both industries consider what they name new strains in the future and even take a second look at some existing ones.
In early July, Terphogz LLC, a seller who carries cannabis products using the name Zkittlez, settled a trademark lawsuit with Wrigley, the owners of the name brand Skittles. This settlement opens a door previously only cracked open, bringing a still new industry into the trademark arena.
What Happened in the Zkittlez Lawsuit
According to Reuters, Wrigley has “accused Terphogz of undermining nearly 50 years of goodwill generated by the Skittles brand with its “freewheeling use” of Skittles marks to sell cannabis, drug paraphernalia, and other merchandise, some of which also carried a rainbow theme.”
The lawsuit also named several slogans the defendants used that were reminiscent of Wrigley’s “Taste the Rainbow”. Though the cannabis brand used Z’s in place of the S’s, it was not distinct enough to be permissible nor did it fall under any rules of exception.
Zerphogz LLC settled with the candy giant, agreeing to cease the sale of products under the Zkittlez name, cease using slogans similar to those owned by Wrigley, any other marketing materials associated with the Zkittlez brand, and give up the domain name Zkittlez.com.
The lawyer representing the owners of Zerphogz released a statement following the settlement, saying, “After using the ‘Zkittlez’ mark for over 10 years with no complaints from the candy maker, we welcomed the opportunity to resolve any trademark concerns with Wrigley. We want to let consumers know they can still enjoy our unique and highly sought-after cultivar under the name ‘The Original Z.'”
How does Trademark/Copyright Law Apply?
When a brand or individual wants exclusive use of a phrase or name, they apply for registration with the United States Patent and Trademark Office (USPTO for short). This registration gives the holder legal protection over a name or phrase, similar to a patent. This legal protection allows them to seek remediation if a party is caught infringing upon the copyright. For example, Wrigley and “Zkittlez”.
At the time of this writing both the registrations for Skittles and “Taste the Rainbow” are live on the USPTO database, meaning they are legally protected and have exclusive use. When another brand or individual uses the registered item or something similar/reminiscent of it that could be confused as the infringed upon brand or impacts them monetarily, a case for a lawsuit can be warranted.
For more information about copyright law, please consult an attorney specializing in that area of expertise.
What Does This Mean for the Hemp Industry?
This lawsuit could open the door for more of the same from brands looking to protect infringed branding within the hemp industry. It is commonplace for strains, packaging, and sometimes even products themselves to be uncannily similar to copyrighted products in other niches. While some hemp brands may have received cease and desist letters before this venture into new legal territory, Wrigley’s lawsuit puts a spotlight on the practice.
It is advisable to always be original when creating a brand identity and marketing. The hemp industry is a constantly changing market without the concerns of copyright infringement. It is imperative that brands learn from lessons such as this case to avoid repeat headlines in the future.
This article should not be taken as legal advice. For more information or guidance about copyright and trademark law, please contact an attorney in that specific field.