Back in July of 2019, Canadian candy company Mondelez filed a lawsuit against three unnamed defendants for their imitations of “Sour Patch” candies in both concept, packaging design, and even slogan similarity (“sour then sweet then stoned”). However, the candy company had to drop the lawsuit after it couldn't determine the company actually making the gummies.
Mondelez Canada Inc. is the maker of one of the most popular candies, Sour Patch Kids. Which some might say is confusingly similar to Cabbage Patch Kids but not going down that rabbit-hole today. Mondelez is not fond of a brand of marijuana-infused candies that look a lot like it and Mondelez took several steps to get it shut down. Mondelez sent multiple letters to the Cannabis Branch of the California Department of Health regarding the product but no action was taken. Medicinal and Adult-Use Cannabis Regulation and Safety Act expressly prohibits the use of packaging and labeling designed to be appealing to children or be easy confused with commercially sold candy or foods that do not contain cannabis. You can be the judge and/or jury for yourself by checking out the two packages next to each other above. Defendants’ packaging is more than a little shady. It doesn’t identify the maker of the gummies and does not have a website or provide any contact information.
Mondelez went another route and filed a lawsuit against the gummy maker for both mark and design infringement. Mondelez claims that the two packages are virtually copies. They have a yellow center with green dabs at the edges that allow the yellow to peak through; there are nearly identical brand name placed in the center with each word stacked on top of each other; the top word is green and the bottom word is orange; and the slogan in the top left corner describes the candy as sour and sweet with identical colors white, yellow, and red used in the same order.
However, Mondelez’s main concern around these black market rip-offs was the potential danger it could pose to children that got their hands on them. The “Stoney Patch” gummy candies were infused with marijuana and being sold wholesale to several vape shops in California.
Mondelez has decided to drop the suit after settling with three vape shops identified as selling these “Stoney Patch” candies: Vape Hub, Green King LA, and Dr. Vape Group LLC. The shops did not pay damages to Mondelez, but all three did agree to surrender any remaining “Stoney Patch” product in their possession, as well as to never sell the product again. The shops allege that they never formally knew the identities of the sellers due to the inherently informal nature of their business dealings.
So Mondelez never actually found the company behind the green candy. I would think that has to be a major disappointment for them but Mondelez is pleased with the outcome. A statement from the company claimed that the suit had “served its purpose” by identifying the shops that were selling these gummy imitations. Mondelez wants it to be known that the results of this suit won’t hinder them from prosecuting other identifiable shops and/or sellers in the future if it means keeping these candies out of legitimate marketplaces. Despite this statement, I can’t imagine the company is pleased not holding the manufacturer liable for the infringement. Guess they had a candy and decide to just chill on the lawsuit.
Thanks to intern, Shelby Shilatz-Lewis, for contributing to this article.