THC Makers, Candy Manufacturers, Fight Over Intellectual Property Infringement

If you made or created a food product, you would probably know better than to design your packaging exactly like a Snickers Bar, a Doritos Bag, a Nestle candy bar or some other well known and protected brand. But in the rising THC industry, many companies have done just that, leading to copyright and trademark infringement lawsuits.

What is THC?

THC is a chemical or substance that is in cannabis. As more and more states are legalizing cannabis, some cannabis product makers are putting THC in candies. To sell the candies, many are designing their packaging to look almost indistinguishable from well-known brands (which do not contain cannabis).

Lawsuits Over Copycat Packaging

Last year, candy and food company Wm. Wrigley Jr., sued multiple THC companies, alleging that the companies made and manufactured THC products in packaging that was virtually indistinguishable from Wrigley’s Skittles, Starburst, and Life Savers food products.

The lawsuits allege infringement of intellectual property, as well as trademark confusion—the company is concerned that consumers will think the “THC Skittles” are actually made by the same company that makes real (non-THC) Skittles. They also say that the packaging will fool, or induce, children to ingest THC.

This isn’t the first of these kinds of lawsuits; others have been filed, and they usually settle, with the THC company agreeing to stop sales of the confusing THC products.

Some products come pretty close to using real product names—for example, “Trips Ahoy,” which is similar to “Chips Ahoy,” or “Stoney Patch Dummies,” which is a play on “Sour Patch Kids” candies, are some that have appeared on store shelves. These knockoffs may have been too small to gather much attention in the past, but with more and more states making THC products legal, copyright and trademark owners are now rushing to defend their brand, and their intellectual property.

Can Candy be Protected?

Any type of candy can be protected by intellectual property laws. Often the shape of the actual candy (think of a Reese’s Peanut Butter Cup shape), or the way packaging is designed, can be copyrighted or trademarked. Candy can even have patents, if there is a recipe, or some special way of making the product.

Many candy makers do not register their products for protection with the government, but rather, just protect their secrets individually on their own, under trade secret laws.

Legal Requirements for THC Manufacturers

Makers of THC products, where the products are legal, are required by law to disclose the amount of THC both in individual doses, and in the entire package. The amounts must be demonstrated by company testing, to verify accuracy. However, because there are no federal cannabis laws (cannabis is still illegal under federal law), often THC product manufacturers don’t ensure compliance with every state regulation where their product is sold.

However, the government doesn’t regulate, or check for, intellectual property violations—that is enforced by the intellectual property owners themselves.

Call the West Palm Beach commercial litigation attorneys at Pike & Lustig today to help you if you have an infringement case.

Sources:

nytimes.com/2021/05/22/style/edibles-marijuana.html

fooddive.com/news/ferrara-wins-lawsuit-banning-look-alike-thc-laced-nerds/618140/