Pubdate: Sun, 03 Jan 2016
Source: Albuquerque Journal (NM)
Copyright: 2016 Albuquerque Journal
Author: Kristen Wyatt, the Associated Press


Legal Protections on Shaky Ground

DENVER (AP) - Snoop Dogg has his own line of marijuana. So does 
Willie Nelson. Melissa Etheridge has a marijuana-infused wine.

As the fast-growing marijuana industry emerges from the black market 
and starts looking like a mainstream industry, there's a scramble to 
brand and trademark pot products.

The celebrity endorsements are just the latest attempt to add cachet 
to a line of weed. Snoop Dogg calls his eight strains of weed "Dank 
 From the Doggfather Himself." Nelson's yet-to-be-released line says 
the pot is "born of the awed memories of musicians who visited 
Willie's bus after a show."

The pot industry's makeshift branding efforts, from celebrity names 
on boxes of weed to the many weed-themed T-shirts and stickers common 
in towns with a legal marijuana market, show the industry taking 
halting steps toward the mainstream.

Problem is, those weed brands aren't much more substantial than the 
labels they're printed on. Patents and trademarks are largely 
regulated by the federal government, which considers marijuana an 
illegal drug and therefore ineligible for any sort of legal protection.

The result is a Wild West environment of marijuana entrepreneurs 
trying to stake claims and establish crossstate markets using a 
patchwork of state laws.

Consumers have no way of knowing that celebrity-branded pot is any 
different than what they could get in a plastic baggie from a corner 
drug dealer.

"You can't go into federal court to get federal benefits if you're a 
drug dealer," said Sam Kamin, a University of Denver law professor 
who tracks marijuana law.

That doesn't mean that the pot business isn't trying.

Hundreds of marijuana-related patents have likely been requested from 
the U.S. Patent and Trademark Office, according to those who work in 
the industry. Exact numbers aren't available because pending patent 
information isn't public.

So far, federal authorities have either ignored or rejected marijuana 
patent and trademark requests, as in the 2010 case of a California 
weed-delivery service that applied to trademark its name, "The Canny Bus."

"They haven't issued a single patent yet. But generally speaking, 
there is broad agreement within the patent law community that they 
will," said Eric Greenbaum, director of intellectual property for 
Vireo Health, which is seeking a patent for a strain of marijuana to 
treat seizures.

Companies like Ligand are betting that if marijuana becomes legal 
nationally, they will be first in line to claim legal ownership of 
whichever type of marijuana they have already developed.

Pot companies also are filing state-level trademarks, thereby 
avoiding the snag in a federal trademark application: the requirement 
that the mark is used in interstate commerce, which remains offlimits 
for pot companies.

In Colorado, for example, there are nearly 700 trade names and 200 
trademarks registered that include the word "marijuana" or a synonym, 
Kamin said.

Pot producers also are claiming everything they can that doesn't 
involve actual weed. So a marijuana company could trademark its logo 
or patent a process for packaging something, without mentioning that 
the "something" is marijuana.

The marijuana industry certainly has been on the receiving end of 
legal threats from other companies that do have trademark and patent 
protection. Cease-and-desist letters aren't uncommon in the mailboxes 
of marijuana companies, whether it's for making a candy that looks 
like a non-intoxicating brand or for selling a type of pot that 
includes a trademarked word or phrase in its name.

The Girl Scouts of the U.S.A., for example, says it has sent dozens 
of cease-and-desist letters to those selling a popular strain of pot 
known as Girl Scout Cookies or another called Thin Mints.

"The use of our trademarks in connection with drugs tarnishes the 
Girl Scouts name," the organization says in the letter it has sent to 
pot sellers primarily in California, Colorado and Washington.

In 2014, Hershey Co. sued two marijuana companies in Colorado and 
Washington for selling "Reefer's" peanut butter cups and "Dabby 
Patty" candies, which resembled Hershey's Reese's Peanut Butter Cups 
and York peppermint patties. Both pot companies agreed to stop 
selling the products and destroy any remaining inventory.

But the industry can't use those same laws to protect its own brands.

"We're in a new industry, where the benefits of federal protection 
aren't open to us," said John Lord, CEO of LivWell, a 10-store chain 
of Colorado marijuana shops that recently entered an agreement to 
sell Leafs By Snoop, the entertainer's new line of marijuana.

LivWell grows the Snoop pot alongside many other strains but charges 
up to $175 more an ounce for the rapper's brand, which is sold from 
behind a glittery in-store display.

"Brand differentiation is the normal progression of events," said 
Lord, who wouldn't share sales figures on the Snoop pot but says its 
performance has been "outstanding."

"Consumers will see more and more of this in the future."
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