Patents and trademarks are undoubtedly going to be fascinating subjects to watch as legalization unfolds. With tens of thousands of entrepreneurs in North America focused on cultivation and retail, the long-term winners of the Green Rush could very well be the companies that secure the most coveted intellectual property rights, whether it’s for a game-changing invention, revolutionary genetics or an iconic brand.
But trademark laws also have the potential to wreak havoc on the legal cannabis industry, particularly within the realm of strains and strain names. At Marijuana Venture, we’ve always been pretty cynical about the thousands of strains that are out there, each with its own supposed medical benefits and intoxicating effects. I believe most scientific research supports our skepticism, but it hasn’t stopped growers from continually muddying the taxonomy further.
While strain names range from the highly recognizable to the completely obscure and from fun and clever to ridiculous and borderline offensive, most are relatively harmless attempts at branding. Yet, I have to admit that I’m pretty shocked at how many companies continue to blatantly infringe well-established trademarks and copyrights.
Call me naïve, but I thought most producers entering the strictly regulated, highly controversial, legal marijuana industry would be more cautious of drawing unnecessary attention from regulatory agencies and billion-dollar corporations like Disney, Nike and McDonald’s.
A quick peek at Leafly’s strain archives brings up dozens of names that will certainly provoke cease-and-desist letters at some point: Skywalker OG, Bruce Banner, Death Star, Juicy Fruit, Dr. Who, Jedi Kush, Air Jordan, Batgirl, Big Mac, Alice in Wonderland, Captain America, Cinderella, Ewok, Godzilla, Green Hornet, Darth Vader, Cookie Monster, Lamborghini, Incredible Hulk, Superman.
Many of these same names have already been banned in states like Oregon, which prohibits names that could be perceived as marketing toward children.
From an intellectual property standpoint, plant patents might be the most critical component for future growth. However strain names and trademarks are probably more immediate hurdles for cultivators.
The Girl Scouts have already attempted to halt sales of the popular Girl Scout Cookies strain, with limited success. Many cultivators have simply rebranded the strain as GSC, just to be safe.
In September, the legal wrangling over the Gorilla Glue name finally came to a predictable end with GG Strains agreeing to change the name of its cannabis cultivars. Rather than copying the name of the ultra-strong adhesive, the company will use the names Original Glue, New Glue and Sister Glue, as well as alphanumeric labels GG1, GG4 and GG5. Similar to Girl Scout Cookies, many producers had already shifted to using the name GG4, so it’s not a major change for the industry at large. GG Strains sent out a press release in October to alert its authorized partners and cultivators about the change. But of the hundreds of marijuana producers selling Gorilla Glue-branded strains, how many of them are actually “authorized partners” of GG Strains? My guess is not very many.
The idea, at this point, that any one breeder “owns” a strain or a strain name is an argument for another day — and likely a subject that will be undertaken by other courts.
Every grower likes to claim they’ve created unique, proprietary strains, but I’d be shocked if more than handful actually meet the qualifications for plant patent.
GG Strains seems to have escaped this lawsuit relatively unscathed. But I have to wonder if this will be the wake-up call needed for other growers to take a deeper look at their naming practices. Or will it take a more devastating lawsuit to end the rampant trampling of trademarks?