Hershey Settles Lawsuit Against Pot-Laced Candy Producer - Fordham Intellectual Property, Media & Entertainment Law Journal
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Hershey Settles Lawsuit Against Pot-Laced Candy Producer

Hershey Settles Lawsuit Against Pot-Laced Candy Producer

The Hershey Company settled its lawsuit for trademark infringement against TinctureBelle, LLC, a Colorado-based company producing and selling THC or cannabis-laced candy.According to the complaint filed on June 3, 2014 in the U.S. District Court of Colorado, TinctureBelle engaged in trademark infringement, trademark dilution, false designation of origin, unfair competition and passing off on the REESE’S, HEATH, ALMOND JOY and YORK trademarks held by Hersey by selling products confusingly similar in both trade marks and trade dress. Hershey specifically mentioned in the complaint that TinctureBelle’s “unauthorized conduct … creates a genuine safety risk with regard to consumers, including children, who may not distinguish between Hershey’s candy products and defendants’ cannabis- and/or tetrahydrocannabinol-based products, and may inadvertently ingest defendants’ products thinking that they are ordinary chocolate candy.”

In its response, as rendered by the Washington Post, TinctureBelle stated that the lawsuit came as a surprise on the company because it had changed the packaging of its products several months before the complaint was filed. With regard to the possibility that the pot-laced candy constituted a safety risk for children, TinctureBelle said that “[t]he suggestion made by some media reports that our products are available to children, and even sold side-by-side with Hershey products, is dumbfounding, and shows a profound lack of awareness of how infused cannabis products are regulated, manufactured, and sold under Colorado’s strict regulatory regime.”

Nevertheless, in the settlement of September 25, 2014, TinctureBelle agreed to cease further sale of the allegedly infringing products, to destroy unsold inventory and to remove its advertising and marketing materials concerning these products. TinctureBelle furthermore agreed to never again use words such as HASHEES, GANJA JOY, HASHEATH, HASHEATS, THINGAMAJIGGY and REEFER’S or REEFER in connection with its pot candy business.

Although Hershey may ultimately have been more concerned about protecting its trademarks against dilution and tarnishment, the issue raised in its complaint that children could mistake a regular Reese’s Pieces candy bar with a pot-laced piece of candy is not as far fetched as TintcureBelly would have it; the New York Times mentioned in a recent article that the Colorado poison-control center received 26 calls in 2013 regarding young children having been exposed to marihuana, up from 11 such calls in 2010. Both parents and law enforcement in Colorado have been worried that children might accidentally eat food products containing marihuana. A couple of weeks before Halloween, The Denver Police and a local marihuana store made a video warning that THC can be sprayed onto store-bought candy, making it impossible to distinguish regular candy from pot candy.

According to the New York Times, state regulators in Colorado have recently required pot-laced candy to contain less pot per serving. In addition, more marihuana products will be required to be sold in childproof packaging and, in some instances, wrapped in packaging similar to that used for prescription pills. Furthermore, the Colorado public health department recently proposed a ban on most forms of edible marihuana, putting the department at odds with the developing edible marihuana market in the state.

Food products and candy containing marihuana might not be prohibited in Colorado any time soon, but stricter packaging requirements for all edible marihuana products could reduce the risk of trade dress infringement, thereby helping to prevent consumer confusion and protect the well-known candy brands of producers like the Hershey Company.

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Zarah Boone

Zarah Faye Boone is an LL.M. student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. She holds a law degree from the University of Oslo, Norway, where she specialized in EU trademark law.