With ongoing legalization and more and more money being sent into the marijuana industry in the USA, it goes without saying that there is going to be many lawsuits surrounding the cultivation, distribution and marketing of marijuana. The law surrounding marijuana is in its infancy with recent legalization and there is going to be much case law setting precedent over the next decade. The law is not yet established and it will be interesting to see how the courts handle the issues that are going to arise. Many growers and distributors are in the dark in their industries and as it is still illegal at the Federal level, there remains quite a lot of legal uncertainty surrounding cannabis.
One area of dispute is going to be the naming and branding of marijuana. Because marijuana was illegal for so many years, the original growers of strains are by and large unknown, as well as the genetics of certain strains. And names are often made up by dealers and cultivators and sold to customers. A label is just a label, whether it is Blue Dream, Skittles or White Lightning. But with money now involved it may no longer be possible for cultivators to name their plant whatever they happen to fancy at the time. They need to give serious thought to the name of their creations.
A Sticky Trademark Lawsuit
Nearly 5 years ago, a medical marijuana grower by the name of Don Peabody dubbed his strain Gorilla Glue #4, as it reminded him of an adhesive known as Gorilla Glue (The strain was very sticky). The strain went on to become wildly popular and won numerous awards in Michigan, California and Jamaica.
Unfortunately for Peabody’s cannabis company GG strains, the makers of the adhesive recently filed a dispute for trademark infringement. And it is easy to see where Gorilla Glue, an Ohio based company, are coming from. All tags on Instagram, Twitter and Facebook are in reference to Gorilla Glue #4 and not the adhesive. Most search engine results are going to show for the marijuana strain, not the liquid based adhesive. The name has been effectively stolen and it has negative business implications for Gorilla Glue, though it was a fairly innocuous mistake. The strain was named at a time when there was less interest in and a lack of legalization in the cannabis industry as a whole.
This is going to be a landmark case, one of the first cases involving marijuana name trademarking. Cases like this are going to set the scene for the whole marijuana industry as there is a huge dearth of case law surrounding cannabis. Cannabis producers have long borrowed from pop culture to name their once-illicit marijuana flowers and infused food and drink. Medicinal pot users and recreational shoppers across the country can regularly spot strains named Snoop OG Kush, Dirty Sprite, Candyland or AC/DC on licensed store shelves. But legalization could force brands to be more original in the future. One issue is that if the court rules with Gorilla Glue, it would open the floodgates for numerous pop icons and other entities to sue breeders of popular cannabis strains that took their name.
However, the drug is still illegal at the Federal level, meaning it is not actually possible for federal trademarks on strains of marijuana. It is possible to receive state trademarks, which GG Strains has done in Nevada, Colorado and has applied for in California. When a farmer is growing a strain from GG Strains, they can send a sample to GG Strains for testing who affirm whether it is one of their products. The producer is then GG certified.
The Importance of Certification
The importance of certification cannot be denied. For decades dealers have simply made up names off the top of their heads and sold them to unwitting customers. They can easily call the strain White Widow, Blue Dream, OG Kush or MK ULTRA. Few could have known the difference, and it is not as if there was any legal recourse in a real of illegal marijuana. Popular strains such as Blue Dream and Sour Diesel lack official certification at present, and customers still do not know what they are getting. There is no standardization at present. The Jack Herer you get in one shop can smell, taste and smoke completely different from the Jack Herer bought in the shop next to it.
It is unknown how the court will view the Gorilla Glue case, and so far the company has been unable to settle. Some courts have only awarded compensation where the products could be mistaken for another, but glue and a cannabis plant are completely different products. The case has been filed in Ohio, which only legalized medical marijuana in 2016, and sales have not yet begun. The implications of this is that there may be less sympathy to marijuana cultivators compared to states where medical and recreational marijuana are familiar and legalized, such as Nevada.
Lawsuits all Around
At present, naming a strain of marijuana is still very much an informal process, but this is going to change as more money gets involved and as trademark law becomes established. If strain creatorshave to retroactively pay damages for names made/infringed during the era of illegitimately, then it could be somewhat farcical and unfair to growers of marijuana. Girls Scouts of America have sent cease and desist letters to medical dispensaries in California who are selling a strain of marijuana called “Girl Scout Cookies”. Until the law gets established, the years ahead with be filled with many lawsuits about marijuana trademarking.