The Washington Post® reports that children are mistakenly consuming products containing THC because the packaging looks like popular brands of snacks.
Trademark law doesn’t exist to protect companies that own trademarks: It exists to protect consumers. Consumers have a right to know what to expect from a product based on the trademark on the package. If someone buys a bag with the Nerds® trademark on it, then that package should contain Nerds® candy and not a product containing THC.
In one of the cases reported by the Post, products containing THC were “accidentally given to 63 people at the Utah Food Bank” resulting in five children being hospitalized.
As I said before, it’s time for the marijuana industry to grow up and start respecting the rules that govern other businesses. When I wrote before, the only harm was to companies that own famous marks. Today, it’s leading to actual trademark confusion that results in hospitalizations.
One step that could help is to allow manufacturers of THC-infused products to register their own trademarks. A manufacturer of consistently high-quality edibles would want to start building brand awareness and customer loyalty in its own brand. That would be easier if they were permitted to register their trademarks like other businesses. That won’t happen until marijuana is decriminalized at the federal level.*
*When the sale or transportation of any product for which registration of a trademark is sought is regulated under an Act of Congress, the Patent and Trademark Office may make appropriate inquiry as to compliance with such Act for the sole purpose of determining lawfulness of the commerce recited in the application.” [30 FR 13193, Oct. 16, 1965, as amended at 54 FR 37592, Sept. 11, 1989]
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