The concept of precedent is a core pillar at all levels of the U.S. court system in which previously decided legal cases set a standard or rule for similar cases that will come over time in their wake. The call it stare decisis, Latin for ‘to stand by things decided’.
So earlier this month when news broke that the American shipping giant UPS (United Parcel Service) had decided to sue multiple companies operating in the cannabis industry for trademark infringement, deceptive advertising, and more, the first thing you ought to do is look for previous legal precedent.
Those who have been in the glass game for a minute surely remember the hype several years back when Hitman Glass and Evol Glass collaborated on a release of a functional glass dab rig that bore more than a slight resemblance to an even more popular cultural icon, the Starbucks FrappyYappyYaYaWhatever.
The dubbed it the “Dabuccino” and custies coast to coast flocked to the Hitman website to get one for their own hoopty’s cupholder.
Once Starbucks corporate – a known anti-cannabis behemoth – caught wind of the products, they went from Cease & Desist to We’ll See You in Court real quick, naming “HITMAN GLASS, A California corporation; JAMES LANDGRAF, an individual residing in Oregon” in a 2016 lawsuit that has the legal team at UPS chomping at the bit to begin their own proceedings.
Now, back in 2016, Mr. Landgraf decided not to appear at his hearing, nor did he send a lawyer to represent him. It probably would have made no difference, considering he and Hitman marketed their pieces as ‘taking inspiration from one of America’s favorite frozen coffee drinks’ and ‘easily relatable.'
When Landgraf ducked the date, the court defaulted in favor of Starbucks to the tune of $410,580.
$300,000 for copyright infringement
$99,000 for trademark infringement and
$11,580 in attorneys’ fees
As for Hitman? Well, Starbucks filed a separate case against them and as far as we can tell, it is still pending.
A. The Hitman Glass website (hitmanglass.com, takeahitman.com) no longer exists at all B. Hitman’s spiteful poke back at the coffee magnate by opening Hitman Coffee in Los Angeles has gone up in smoke and no longer exists C. Hitman’s biggest success, the Chalice Festival, was bought in a debt payoff by rival High Times and as far as we know, no longer exists
…Starbucks might be trying to squeeze blood from a stone.
But the case did set a precedent with Starbucks successfully arguing that Landgraf and Hitman Glass, “willfully intended to create an association with the Starbucks Marks and to capitalize upon the success and popularity of the Starbucks Marks to sell [their] products.”
That precedent probably does not bode well for Hitman’s eventual case, if it comes to that. It also sets a gloomy tone for the upcoming cases launched by UPS.
The iconic brown-clad, brown-trucked parcel shipping company has no doubt unwittingly delivered literal tons of illegal cannabis shipments over the years, but once their legal team became aware of three cannabis delivery companies using that well-known UPS branding to their own advantage, they dropped the hammer.
Their complaint, filed last week in federal court, accuses United Pot Smokers, UPS420 and THCPlant and their associative websites upsgreen.com and ups420.com of using names, logos, color schemes and more that are ““confusingly similar” to the mainstream company.
The complaint, filed to the U.S. District Court for the Central District of California, states that the defendants “intended to capitalize off UPS’s extensive goodwill and reputation” by appropriating their shield logo and other recognizable aspects of their branding.
UPS cites the federal prohibition of the cannabis plant as a driving factor in their opposition to being associated with the industry. But they take it a step further, putting it on the record that the defendants “have acquired a reputation for unlawful and unprofessional conduct, including offering sham services”.
As evidence of those “sham” services, UPS introduced to the court an online review claiming that one of the defendants was “ripping off” medical marijuana patients.
Holy shit, talk about setting a dangerous precedent.
If every cage-crapping screamer in a comments section is now an expert witness, every business in America is doomed!
UPS says that it sent repeated cease and desist demands in the final months of 2018 but all were ignored, according to their complaint. As a result, the three cannabis companies are being sued by one of the nation’s largest corporations under California and federal law for trademark infringement, trademark dilution, false designation of origin, deceptive advertising, and unfair business practices. UPS is seeking damages, demanding an end to the alleged infringement, and wants control of the websites.
The case reeks of stare decisis and the fanged and clawed legal team at UPS is surely ready to sink its teeth in.
So, where does the line get drawn between homage and theft? It’s a tricky question as we see other glass artists “pull inspiration” from pop culture sources all the time without crippling legal retribution. One answer may be in mass production.
These “Dabuccino” style rigs became so popular that their price consistently hovered anywhere from hundreds to thousands of dollars, making them a ripe target for the real ripoff artists, the fucking pros in China who began exporting cheap knockoffs here to the U.S. for pennies on the dollar, blowing up the style and probably putting it on the radar for UPS to seek and destroy.
We are also seeing this borrowed branding spreading into other facets of the cannabis industry with several companies coming to mind, but with the implementation of hyper-regulation it is more important than ever to remember that cannabis companies are not immune from trademark laws.
The Canna Law Blog has a great series of articles and advice on the matter which is a useful resource considering that these are absolutely legal matters.
Just like you wouldn’t want some startup using your name and branding as a springboard for their own success, these established mainstream brands feel the same way with the added pressure of federal prohibition of cannabis.
Choose your branding wisely, it’s going to stick to you for better or for worse.