Nothing kills a buzz more than a lawsuit. The makers of the “Sour Patch Kids” have sued a marijuana-infused candy maker over their “Stoney Patch” gummies claiming the brand is a knock-off.
Let’s start with a learning lesson before we delve into the world of edibles. There are several kinds of trademark infringement and two at the heart of this lawsuit. First, mark infringement. This is having a trademark that is confusingly similar to another like a sneaker line called “Teebok” or “Radidas”. Second is trade dress infringement. Trade dress infringement protects the non-functional aspects of the appearance of an item. Such things may be the cheesy decor of a TGIFridays or the shape of cracker goldfish. Now onto 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.
Let’s be frank here, it’s clearly a copy and the marijuana maker is in some trouble. The suit claims defendants are intentionally seeking to call to mind the Sour Patch brand. Mondelez argues that defendants conduct is likely to cause consumers to falsely associate Defendant’s products with MCI. Types of products Mondelez would never sell and does not condone. (Insert debate of how sugar might be a lot more harmful than marijuana here.) Mondelez claims that the STONEY KID design is virtually identical to the SOUR PATCH KID mark and that the packaging is a copy as well.
I would hurry up and bulk order your Stoney Kid because it will not be on the shelf for much longer.
*Thanks to Lee Law intern, Alexander Morrison, for contributing to this article. *