A lawyer walks into a cannabis shop

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Downs Rachlin Martin PLLC

It was my first day as President and Counsel of Hershey Chocolate & Confectionery Corporation. Armed with a shiny new corporate credit card, I strolled into a cannabis dispensary and prepared to buy some marijuana. No, I wasn’t stressed about my new job; I was on the hunt for cannabis infused candy knocking off Hershey’s iconic brands. On my first stop, I found exactly what I was looking for, a chocolate bar that had the identical shape and 3x4 grid configuration of the classic HERSHEY’S bar (the shape of the bar is protected by a federal trademark registration). When I signaled interest in the cannabis infused bar, the “budtender” assigned to help me blurted out that “it is just like a HERSHEY’S bar” and explained that each section of the bar contained a set amount of cannabis. Looking me over carefully, she warned that, “if I were you, I would start with just one section.” I strolled out of there with Exhibit A to the first, but not the last, lawsuit I directed Hershey to file against a cannabis company. Needless to say, we won and the infringer went belly up.

I couldn’t help but reflect on my first day at Hershey as I read this week about a permanent injunction and $32,000 judgment levied against a Canadian company for opening up a cannabis dispensary called BUDWAY. Like the cannabis companies that targeted Hershey and other candy companies, the folks at Budway did everything they could to create an association with a famous brand, this time the well-known sandwich chain SUBWAY. Budway knocked off the name, colors, taglines, and even the promotions used by Subway. As a journalist once said about the companies knocking off Hershey’s brands, whomever thought this Budway marketing campaign was a good idea must have been high.

Our firm has represented brands targeted by bad actors in the cannabis space, as well as a number of cannabis companies looking to navigate the legal challenges posted by this emerging, quasi-legal market. The laws are changing, including right here in Vermont. Our lawyers have the experience to identify and minimize risks to those in the cannabis industry, and assist our cannabis industry clients in building intellectual property assets that provide them freedom to operate and add value to their business.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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