With the recent legalization of marijuana in both Washington and Colorado, the sale of cannabis is a budding, but promising, industry. Seeing a pot of gold at the end of the legalization rainbow, a wide range of businesses have rushed to market marijuana and marijuana-laced products.

One such business, Seattle Conscious Care Cooperative, sells several marijuana products under names that are twists on other companies' trademarks, for instance, "Reefer's Cups" instead of "Reese's Cup" and "Mr. Dankbar" instead of "Mr. Goodbar." In an attempt to weed out what it believes is an infringing use of its trademarks, Hershey's has filed a trademark suit against SCCC to prevent it from selling Reefer's Cups and Mr. Dankbars.

To be blunt, SCCC's (or its supplier's) branding decision appears to be the work of inexperienced and uniformed business people without lawyer input. Without the advice of trademark counsel, this branding tactic has become chronic: SCCC also sells a marijuana-laced version of Pepperidge Farm's popular Goldfish crackers. You should always involve your trademark counsel and clear the use of your product names before putting any new product in the pipe-line. The prudent course of action for SCCC would have been to approach Hershey for a license, abandon the name, or, albeit a long-shot, a joint venture (e.g. Breyer's "Reese's Cup" ice cream). Although involving a trademark attorney may have cost more money on the front end and may have resulted in less "clever" product names, it would have helped SCCC avoid the high cost of litigating against a powerful company.

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