Annapolis, Maryland-based cannabis company Crabcakes & Cannabis®, pulled a popular parody sticker after receiving a cease-and-desist letter from McCormick & Company, Incorporated, the makers of Old Bay® seasoning, who said their sticker was too similar to their Old Bay logo. 

Crabcakes & Cannabis took the opportunity to challenge the implications of a Supreme Court decision last June that is impacting all types of small businesses. The issue brings up the question that if parodies aren’t allowed, are we taking trademark laws too far?

The novelty sticker parodies the Old Bay spice jar, but it ended up prompting a lawsuit as McCormick alleges a trademark infringement and tarnishing of their image by associating it with cannabis.

“While we firmly believe in the protection of parody and First Amendment rights, the prohibitive cost of litigation led us to make the difficult decision to discontinue our parody sticker,” Founder of Crabcakes & Cannabis Jennifer Culpepper said in a statement We stand by the fact that no reasonable consumer would confuse our novelty item with a food seasoning product.”

The cease and desist letter sent from McCormick & Company claims that the parody sticker, featuring the words “420 BUD” and designed in a way that’s reminiscent of the Old Bay jar, infringed upon their trademark and trade dress, potentially harming their brand’s reputation. 

Per the letter, McCormick stated that the company “takes this matter very seriously, as it is not in the business of sponsoring products relating to marijuana use.”

Culpepper continued, “We deeply respect businesses’ (and artists’) rights to safeguard their brands, but it is paramount that we strike a balance between these rights and the freedom of expression and creativity that parody affords. When a large business bullies a small business through costly litigation, it makes standing up for your rights nearly impossible. Regardless, we still love Old Bay. Our parody sticker was intended to pay homage to the Maryland brand, not to tarnish anyone’s reputation.”

Culpepper also owns Brand Joint, a national branding agency, and she has been on the other side of a copyright infringement case in the past. She stated, “We have always been very careful not to copy, but rather to create fun and unique parody designs that celebrate Maryland icons.”

The company hopes something good can come out of the incident for the better.

Culpepper concluded, “We hope that this experience will spark a broader conversation about the importance of protecting parody and freedom of expression in our society.

Jack Daniel’s SCOTUS Decision

Last June, a dog toy company Bad Spaniels triggered a lawsuit saying that the company copied elements of Jack Daniels that violated trademark laws.

Jack Daniel’s Properties v. VIP Products rejected the use of images that resemble Jack Daniel’s trademarks by a manufacturer selling a line of dog toys that mock various beverage manufacturers. Justice Elena Kagan said there were four main elements used by Bad Spaniels that violated trademark laws:

• The toy “is about the same size and shape as an ordinary bottle of Jack Daniel’s”;
• The “faux bottle” follows the original in using a “black label with stylized white text and a white filigreed border”;
• The toy has the product name (Bad Spaniels) “in a like font and arch” to those of the Jack Daniel’s bottle; and
• “Old No. 2 On Your Tennessee Carpet” replaces “Old No. 7 Tennessee Sour Mash Whiskey.”

All members of the court agreed with Justice Kagan’s opinion to deem that toy a condemnable infringement of the Jack Daniel’s marks.

Cannabis and Candy Trademark Cases

A number of other cannabis companies have faced similar lawsuits—particularly cannabis products that mimic or parody major candy brands.

Skittles maker Mars Wrigley won a lawsuit in August 2022 against cannabis companies that mimicked the candy. Mars initially filed the lawsuit in May 2021, claiming that the illegal retailers infringed on Mars’s registered trademarks. 

Mars Canada Inc., global candy giant and Mars Wrigley, which oversees confections such as of M&M’S®, SNICKERS®, ORBIT®, EXTRA® and Skittles®, recently concluded a lawsuit involving the use of the Skittles logo on illegal cannabis products. On Aug. 12, a federal Judge Patrick Gleeson ruled that three online cannabis retailers “deliver up and destroy all infringing products and packaging,” and also pay various sums for infringing upon Mars’s trademark.

In August 2017, the Ohio-based glue company that produces Gorilla Glue took GG Strains to court due to the use of “Gorilla Glue” in numerous strain names. In February 2018, the company went after cannabis companies who were infringing upon the Hershey’s Chocolate trademarked products. In February 2019, a group of delivery businesses called United Pot Smokers, UPS420, and THCPlant, were brought to court by UPS (United Parcel Service) regarding misleading brand identifiers. Later in July 2019, Sour Patch Kids candy maker targeted an illegal cannabis edibles product called “Stoney Patch” for infringing upon the trademark.

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Nike is one of the largest footwear and athletic gear companies in the world, known for its familiar slogan “Just Do It.” The company recently issued a trademark complaint on Jan. 18 against a Texas-based CBD company called Revive Farming Technologies, who filed to use the trademark “Just Hemp It” on Dec. 16, 2019.

“JUST DO IT … which has been in use in commerce for more than 30 years, and registered for more than 25 years, is famous within the meaning of Lanham Act Section 43(c), 15 USC § 1125(c),” Nike stated. It is asking the Patent and Trademark Office and Trademark Trial and Appeal Board to deny Revive’s attempt to trademark the phrase “Just Hemp It.”

Nike argues that it owns multiple trademark registrations for the “Just Do It” mark, describing it as “widely recognized and famous,” and that the Revive should not be allowed to trademark “Just Hemp It” because it would lead to confusion and cause injury and damage to Nike.

According to Green Market Report (GMR), Revive already features the phrase on its website followed with a trademark symbol. GMR also states that the website contains language that makes unauthorized medical claims about CBD.

Nike’s “Just Do It” campaign first launched in 1988 by the late Dan Wieden, who has successfully launched other slogan campaigns for companies like Old Spice, Procter and Gamble, and Coca Cola. Apparently Wieden said that “Just Do It” was inspired by the final words of an inmate on death row, who said “You know, let’s do it” before his execution.

Nike has led successful trademark complaints against other companies attempting to use variations of “Just Do It” in the past. In 1992, Nike targeted a company called “Just Did It,” which also sold athletic gear, for trademark infringement. In 2020, Nike went after a business for using “Just Believe It.” More recently, a small business owner who started a succulent shop called JustSuccIt in 2020, was also contacted by Nike regarding trademark infringement.

This hasn’t been an uncommon trend in the cannabis industry either. In August 2017, the glue company known as Gorilla Glue took Gorilla Glue Strains to court. The results meant that strains known as Gorilla Glue #1 or Gorilla Glue #4 would be referred to as GG1 or GG4. 

In February 2018, The Hershey Co. began suing cannabis companies for copyright infringement, and targeted both the Oakland-based Harborside dispensary and a California edibles company called Good Girl Cannabis Co. for selling items with similar Hershey product branding.

UPS targeted cannabis delivery services that were using its acronym, such as United Pot Smokers, UPS420, and THCPlant in February 2019. 

Later in August 2019, Sour Patch Kids targeted illegal cannabis products like Stoney Patch for infringing upon the trademark as well. Cinnabon took on a vape company in October 2019 for selling an e-liquid using the brand’s name, just one month before the Center for Disease Control and Prevention discovered that vaping lung injuries were being caused by vitamin E acetate in November 2019.

More recently in August 2022, Mars Wrigley won a lawsuit against cannabis companies using the logo font and colors to sell illegal edibles. “I have placed significant weight on the issue of harm not only to the Plaintiff but also to members of the public who might accidentally consume the Defendants’ Infringing Product believing it to be a genuine SKITTLES product. The fact that SKITTLES are a confectionary product that are attractive to children reinforces the need to denounce the Defendants’ conduct,” said Judge Patrick Gleeson in his ruling.

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Mars Canada Inc., global candy giant and Mars Wrigley, which oversees confections such as of M&M’S®, SNICKERS®, ORBIT®, EXTRA® and Skittles®, recently concluded a lawsuit involving the use of the Skittles logo on illegal cannabis products. On Aug. 12, a federal Judge Patrick Gleeson ruled that three online cannabis retailers “deliver up and destroy all infringing products and packaging,” and also pay various sums for infringing upon Mars’s trademark.

“I also find that advertising and offering for sale of a potentially dangerous product using appropriated trademarks that are evidently and obviously attractive to children represents a marked departure from ordinary standards of decent behaviour that deserves to be denounced and deterred,” Gleeson wrote in the motion.

“I have placed significant weight on the issue of harm not only to the Plaintiff but also to members of the public who might accidentally consume the Defendants’ Infringing Product believing it to be a genuine SKITTLES product. The fact that SKITTLES are a confectionary product that are attractive to children reinforces the need to denounce the Defendants’ conduct,” Gleeson continued.

Mars initially filed the lawsuit in May 2021, claiming that the illegal retailers infringed on Mars’s registered trademarks. “Mars Wrigley strongly condemns the use of popular candy brands in the marketing and sale of THC products, which is grossly deceptive and irresponsible,” the company stated in a press release. “The use of Mars Wrigley’s brands in this manner is unauthorized, inappropriate, and must cease, especially to protect children from mistakenly ingesting these unlawful THC products.”

The company specifically mentioned products called “Medicated Skittles,” “Starburst Gummies,” and “Life Savers Medicated Gummies” that were being illegally sold on e-commerce sites in Canada and the U.S. According to a complaint filed in Riverside, California at the time, these products “pose a great danger to the public as anyone, children and adults alike, could easily mistake the infringing cannabis-infused products for Wrigley’s famous and beloved candies and inadvertently ingest.”

According to the National Post, Mars hired private detectives to purchase product lookalikes that infringed upon the company’s trademarks.

In August 2017, the Ohio-based glue company that produces Gorilla Glue took GG Strains to court due to the use of “Gorilla Glue” in numerous strain names. By October, a settlement was reached, which stated that Gorilla Glue #1, #4, and #5, would no longer be used, and instead be replaced with GG1, GG4, GG5, etc. The cultivator’s website domain would also be transferred to the Gorilla Glue company ownership by January 2020, among other stipulations.

Although it was a major setback, Ross Johnson, Co-founder of GG Strains and Gorilla Glue, was confident that that it could bounce back. “We’re going to survive; we’re going to overcome it,” Johnson said. “Is it a setback? Most definitely, it is a setback. But it’s all behind us now, and it’s allowing us to move forward.” Sadly, Johnson passed away in 2019, followed by his co-founder, Don Peabody (also known as Joesy Whales), in 2020, according to the Cannabis Business Times.

Similar legal moves have been made in regard to other famous trademarked brands as well. In February 2018, the company went after cannabis companies who were infringing upon the Hershey’s Chocolate trademarked products. In February 2019, a group of delivery businesses called United Pot Smokers, UPS420, and THCPlant, were brought to court by UPS (United Parcel Service) regarding misleading brand identifiers. Later in July 2019, Sour Patch Kids candy maker targeted an illegal cannabis edibles product called “Stoney Patch” for infringing upon the trademark.

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