Annapolis, Maryland-based cannabis company Crabcakes & Cannabis®, pulled a popular parody sticker after receiving a cease-and-desist letter from McCormick & Company, Incorporated, the makers of Old Bay® seasoning, who said their sticker was too similar to their Old Bay logo.
Crabcakes & Cannabis took the opportunity to challenge the implications of a Supreme Court decision last June that is impacting all types of small businesses. The issue brings up the question that if parodies aren’t allowed, are we taking trademark laws too far?
The novelty sticker parodies the Old Bay spice jar, but it ended up prompting a lawsuit as McCormick alleges a trademark infringement and tarnishing of their image by associating it with cannabis.
“While we firmly believe in the protection of parody and First Amendment rights, the prohibitive cost of litigation led us to make the difficult decision to discontinue our parody sticker,” Founder of Crabcakes & Cannabis Jennifer Culpepper said in a statement We stand by the fact that no reasonable consumer would confuse our novelty item with a food seasoning product.”
The cease and desist letter sent from McCormick & Company claims that the parody sticker, featuring the words “420 BUD” and designed in a way that’s reminiscent of the Old Bay jar, infringed upon their trademark and trade dress, potentially harming their brand’s reputation.
Per the letter, McCormick stated that the company “takes this matter very seriously, as it is not in the business of sponsoring products relating to marijuana use.”
Culpepper continued, “We deeply respect businesses’ (and artists’) rights to safeguard their brands, but it is paramount that we strike a balance between these rights and the freedom of expression and creativity that parody affords. When a large business bullies a small business through costly litigation, it makes standing up for your rights nearly impossible. Regardless, we still love Old Bay. Our parody sticker was intended to pay homage to the Maryland brand, not to tarnish anyone’s reputation.”
Culpepper also owns Brand Joint, a national branding agency, and she has been on the other side of a copyright infringement case in the past. She stated, “We have always been very careful not to copy, but rather to create fun and unique parody designs that celebrate Maryland icons.”
The company hopes something good can come out of the incident for the better.
Culpepper concluded, “We hope that this experience will spark a broader conversation about the importance of protecting parody and freedom of expression in our society.
Jack Daniel’s SCOTUS Decision
Last June, a dog toy company Bad Spaniels triggered a lawsuit saying that the company copied elements of Jack Daniels that violated trademark laws.
Jack Daniel’s Properties v. VIP Products rejected the use of images that resemble Jack Daniel’s trademarks by a manufacturer selling a line of dog toys that mock various beverage manufacturers. Justice Elena Kagan said there were four main elements used by Bad Spaniels that violated trademark laws:
- The toy “is about the same size and shape as an ordinary bottle of Jack Daniel’s”;
- The “faux bottle” follows the original in using a “black label with stylized white text and a white filigreed border”;
- The toy has the product name (Bad Spaniels) “in a like font and arch” to those of the Jack Daniel’s bottle; and
- “Old No. 2 On Your Tennessee Carpet” replaces “Old No. 7 Tennessee Sour Mash Whiskey.”
All members of the court agreed with Justice Kagan’s opinion to deem that toy a condemnable infringement of the Jack Daniel’s marks.
Cannabis and Candy Trademark Cases
A number of other cannabis companies have faced similar lawsuits—particularly cannabis products that mimic or parody major candy brands.
Skittles maker Mars Wrigley won a lawsuit in August 2022 against cannabis companies that mimicked the candy. Mars initially filed the lawsuit in May 2021, claiming that the illegal retailers infringed on Mars’s registered trademarks.
Mars Canada Inc., global candy giant and Mars Wrigley, which oversees confections such as of M&M’S®, SNICKERS®, ORBIT®, EXTRA® and Skittles®, recently concluded a lawsuit involving the use of the Skittles logo on illegal cannabis products. On Aug. 12, a federal Judge Patrick Gleeson ruled that three online cannabis retailers “deliver up and destroy all infringing products and packaging,” and also pay various sums for infringing upon Mars’s trademark.
In August 2017, the Ohio-based glue company that produces Gorilla Glue took GG Strains to court due to the use of “Gorilla Glue” in numerous strain names. In February 2018, the company went after cannabis companies who were infringing upon the Hershey’s Chocolate trademarked products. In February 2019, a group of delivery businesses called United Pot Smokers, UPS420, and THCPlant, were brought to court by UPS (United Parcel Service) regarding misleading brand identifiers. Later in July 2019, Sour Patch Kids candy maker targeted an illegal cannabis edibles product called “Stoney Patch” for infringing upon the trademark.
