In order for the Cannabis Industry to continue to flourish, the continual development of new technology will be a crucial aspect to its success or failure. This could be in the form of new energy efficient equipment, specialized pest control products or unique software, along with countless other avenues of innovative products that will add value to this industry. Let’s dive into the three forms of Intellectual Property and how they relate to the Cannabis Industry.
Copyright – This is the legal right that grants the creator of an original work the exclusive right for its use and distribution. This original work can come in many forms (musical, dramatic, literary, and architectural, along with others) and prevents others from copying this work without the consent of the creator. For this industry, copyrights will come into play if an individual or business wants to protect their marijuana-content work. This can include cookbooks, grow guides, and other forms of instructional materials. The caveat is that these works must contain a sufficient amount of creative and original content in order for it to qualify as copyrightable. Just like any other industry, these businesses need to be wary that they are not infringing upon current copyrights. A notable case in 2016 was Starbucks v Hitman Glass and James Landgraf. One of Hitman Glass’s products was a line of “Dabuccino” water-pipes that look very similar to Starbucks popular Frappuccino and includes the recognizable green straw and logo that, without examining very closely, can be easily mistaken for Starbuck’s logo. This lawsuit resulted in Starbucks being awarded $300,000 as they proved that this product hurt their brand which resulted in financial and reputational damage to their business. Cannabis businesses need to be mindful that a copyright will protect the creator for anything that they have drawn, painted, written, or created on a computer and if a company uses their work and dilutes the market even just a little bit without getting permission from the creator, they will face copyright issues.
Trademark – When you look at some of the most iconic brands in the world today like Apple, Google, or Coca-Cola, you probably notice the symbol that accompanies it. That symbol lets everyone know that this image is trademarked and according to the United States Patent and Trademark Office (USPTO): “A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others”. For the Cannabis Industry, a trademark is necessary to differentiate your brand and ensure that it is not copied by any competitors. However, the industry needs to be cautious that they aren’t infringing upon another trademark. Take the court case from 2014 of Tincture Belle v Hershey: Tincture Belle replicated the design of Hershey’s iconic products along with labeling them with names that are extremely similar to the actual Hershey brand (Hashees vs Reeses, Dabby Patty vs Peppermint Patty, etc.). Once Hershey’s caught wind of this, they contacted Tincture Belle and ended up settling out of court with them as Tincture Belle agreed to destroy all of their edibles and remaining packaging. This is an obvious case of copyright infringement, but doesn’t understate the fact that the industry needs to take notice of this and be careful when they decide on their branding.
Patent – Patents are unique in the fact there are three different types:
- Utility Patent – granted for the invention or discovery of any new and useful machine, article of manufacture, process, composition of matter, or some sort of improvement.
- Design Patent – granted for the discovery or invention of an original, new, and ornamental design for any article of manufacture.
- Plant Patent – granted for the invention or discovery along with asexually reproducing any new and distinct plant variety.
Out of those three types, the one that this industry needs to be very interested in is the Plant Patent, as this will allow cannabis breeders to apply for patents on specific strains that they develop. These patents are active for 20 years and will have the capability of preventing others from using the specific patented strain without first receiving authorization from the patent holder. It has only been very recent that growers have begun to file for marijuana strain patents and there haven’t been any to make it through the process yet, however, it is only a matter of time until that first patent is released. When this happens, cultivators need to be very cautious of the strains that they use because if they use a patented strain as one of the genetic parents, they would be committing patent infringement. If the patent owner felt necessary, they have the right to sue and would inevitably lead to those plants that contain the patented strain being unable to distribute and possibly even destroyed.
Now, this does not mean that the industry doesn’t have to be wary of the other two patents because if you are using machinery or a process that has been patented you should really consider ceasing those operations immediately. Take Connoisseur Concentrates, who was recently awarded a patent for their extraction machinery Mr. Extractor. On their website, they state “we now have a patent which the vast majority of extraction devices fall under. These include devices sold by manufacturers, those built at home, and those being used by most”. This is a warning to the industry that if part of their operations includes extracting, they need to make sure that their operations don’t encompass any of Connoisseur Concentrate’s patent or risk receiving a cease and desist letter that could potentially lead to a lawsuit.
For the industry to continue on the path that it is on, the need for inventions and innovations to make the industry more profitable, efficient, and sustainable is vital. However, those who are coming up with these new concepts and products must ensure that they are protecting themselves, their business and their ideas as these forms of intellectual property are what separate businesses from their competitors and add value to their business and brand. According to the World Intellectual Property Organization (WIPO): “Intellectual capital is recognized as the most important asset of many of the world’s largest and most powerful companies; it is the foundation for the market dominance and continuing profitability of leading corporations”. For those of you who have a copyright, trademark, or patent or have one pending and would like to take the next step and obtain insurance for them, please reach out and we can discuss further as this could negate you from having to pay those defense and legal costs out of your own pocket.