Skittles for marijuana; bad idea

18 May 2021

In the United States and Canada, the legal market for marijuana and marijuana-related products is booming. However, when an illegal market becomes a legal market, adjustment problems are likely to occur. With regard to trademarks, for example.

In an illegal market, the law is broken by definition, and sellers of prohibited substances are probably not that concerned with intellectual property rights. Producers of ecstasy pills often press a recognizable logo into their pills. Not their own logo, of course, but that of Tesla, Mitsubishi, Starbucks or Superman. And without an address or a Chamber of Commerce registration, sending a cease and desist letter is difficult. References to well-known brands and products are also not uncommon in the illegal marijuana business, think, e.g., of the relatively well-known ‘Adihash’ logo parody.

Legalization of marijuana

Now that marijuana has become legal in many states in the U.S., enforcement of trademark law is suddenly becoming a lot easier. Trademark owners are now able to effectively address manufacturers and vendors that use identical or similar trademarks. And they do.

For example, Mars Wrigley recently objected to the use, in the US and Canada, of its trademarks Skittles, Starburst and Life Savers for marijuana-related products, sold in almost identical packaging. The user of the marijuana mark Zkittlez was also ordered to cease the infringement.

There is little doubt that Mars Wrigley will win its case against these 'Medicated Skittles'. The infringement is quite obvious and a strong additional argument is that the likelihood of confusion can cause a dangerous kind of confusion as well. Accidentally handing out festive bags of ‘medicinal’ Skittles at a children's party is something most parents would rather not have on their conscience.


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