Ferrara wins lawsuit banning look-alike THC-laced Nerds


Dive Brief:

  • Two THC-laced candy products with a similar look and branding as Ferrara’s Nerds candy can no longer be manufactured or sold, a federal judge ruled last week. District Judge Thomas Durkin ordered Canadian cannabis company Higharchy and manufacturer ReRoot to account for and pay to Ferrara all profits from their Medicated Bud Bites and Medicated Bud Clusters candy, which infringed on the Nerds trademark.
  • Ferrara sued the cannabis company in October, arguing that Higharchy had both infringed on its long-held copyright for Nerds candy and also purposely made a product that would deceive consumers, especially children. Ferrara did not respond to a request for comment on the ruling, and an email to Higharchy requesting comment did not go through.
  • As medical and recreational cannabis use becomes legal across the United States, a handful of edibles manufacturers are making THC copycat versions of popular candies without the manufacturers’ permission. Companies including Ferrara and Mars Wrigley have filed several federal lawsuits, accusing the cannabis companies of infringing on their trademarks and endangering consumers old and young.

Dive Insight:

Another ruling has come down against marijuana manufacturing companies using packaging and logos to make candy that is extremely similar to decades-old favorites. And while there are still court cases on this issue yet to be decided, the precedent doesn’t look good for the cannabis companies.

Between 2020 and 2021, Mars Wrigley and Ferrara filed five lawsuits against cannabis edible manufacturers or packaging makers accusing them of copyright infringement. So far, the confectioners have been successful in three of them — two filed by Ferrara and one filed by Mars Wrigley against a company that makes empty packaging for cannabis edibles. The other two, both filed by Mars, are still pending in California federal court.

In November 2020, Ferrara filed a similar lawsuit against California-based Tops Cannabis, which used similar branding for its THC-infused Medicated Nerds Rope. A California federal judge made a similar ruling — banning future sale and manufacture of the product and ordering all profits from the product be turned over to Ferrara — last May.

All five cases laid out detailed arguments about the confectioners’ history with the trademarks and made similar arguments about cannabis products in look-alike packaging. These packages are intentionally deceptive, they argue, threatening the goodwill the confectioners have built in their brands, but could also easily be confused by children for candy. In all of the cases, the companies in the marijuana businesses either didn’t put together detailed responses or denied almost all claims brought forward in the lawsuits due to lack of knowledge.

In recent years, similar cases have been brought by the Hershey Company — against a manufacturer making THC variations of Reese’s Peanut Butter Cups, Heath bars, Almond Joy bars and York peppermint patties — and Mondelēz International — against a company making Stoney Patch Kids, according to The New York Times. These lawsuits have all been settled, the newspaper said, with the smaller companies agreeing to halt production and sales of the offending products.

This track record of losing trademark cases in court — as well as the often lackluster defense arguments — beg a central question: Why would cannabis manufacturers do this? There is potentially the nostalgia factor, which in this case provides consumers with a very adult experience using the types of candy they enjoyed as children. But no edibles manufacturer has survived a legal challenge from a manufacturer, and being forced to forfeit all profits a product line has ever brought cuts much deeper than just discontinuing a product.

These products have also confused children and adults. In a matter of a few weeks last winter, a 3-year-old and a pre-teen in New Jersey both were hospitalized after eating look-alike marijuana candy. According to The Washington Post, poison control centers across the U.S. handled 554 cases of children eating marijuana edibles in 2020 — about 400 involving children younger than 5. A Florida news station reported last year that several law enforcement agencies had confiscated these types of edibles from students at middle and high schools.

As marijuana is becoming both legal and socially accepted, many manufacturers of edibles are working toward building their own distinct and sophisticated brands. This kind of branding, targeting adults by touting functional aspects of cannabinoids, can help edibles seem like a more mature lifestyle choice. It can also build the marijuana segment with distinct and serious products that consumers will want — even if they aren’t pretending to be something else.

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