Cannabis Trademark Litigation: Tread Carefully

Federal cannabis trademark litigation is a difficult proposition. In a recent case filed by Wunderwerks, Inc., a company that sells beverages infused with CBD and THC additives, we see another unfortunate example of this. Federal courts, at least, are still no friend to the cannabis industry.

Wunderwerks had sued Dual Beverage Company LLC (“DBC”) in California district court for a variety of federal and state trademark infringement claims. Wunderwerks alleged that DBC infringed on Wunderwerks trademarks when DBC began to sell its W*NDER branded beverages. Most recently, Wunderwerks filed a motion for a preliminary injunction. The motion sought to restrain DBC from further causing consumer confusion by continuing to sell these products. That motion was denied, and the Court was very clear that the product itself was a huge reason for the denial.

To back up, the bar is admittedly very high for obtaining a preliminary injunction, in cannabis trademark litigation or standard trademark litigation. The moving party needs to establish four factors:

  1. A likelihood of success on the merits;
  2. The moving party is likely to suffer irreparable harm in the absence of preliminary relief;
  3. The balance of equities tips in the moving party’s favor, and
  4. An injunction is in the public interest.

Here, the Court found that each of the factors weighed against granting the preliminary injunction to the cannabis trademark owner. The Court’s decision was heavily influenced by the illegality of marijuana under federal law.

Wunderwerks’ likelihood of success on the merits

Here, the Court noted that there was serious question as to whether Wunderwerks’ federal trademark was even valid, because it encompassed an illegal product under federal law. After a short discussion of lawful hemp versus unlawful marijuana, the Court concluded:

“Based on the evidence presented, the Court finds the “WUNDER” federally registered mark is likely to be invalid because plaintiff’s products encompass products illegal under federal law, and thus lawful use in commerce cannot be established.”

Wunderwerks’ likelihood of suffering irreparable harm

While Wunderwerks argued it had lost and will continue to lose business opportunities due to DBC’s infringement, DBC argued that because Wunderwerks was selling an illegal cannabis product under federal law, it was not entitled to any presumption that it was suffering irreparable harm. The Court agreed. It ultimately concluded that Wunderwerks’ argument was “speculative” and found this factor also weighed in DBC’s favor.

The balance of equities

Along the same line of reasoning, the Court concluded that the injunction would effectively stop all of DBC’s cash flow, but the impact on Wunderwerks’ cash flow was again, speculative. Ultimately, because the moving party has the burden to establish that the balance of equities favored granting the injunction, the Court found that Wunderwerks’ failure to do so was another factor for denying the motion.

Whether the injunction is in the public interest

Finally, even though the Court acknowledged that DBC didn’t make any public interest argument at all in its responding papers, the Court itself concluded there was no public interest in Wunderwerks’ favor:

“However, the Court finds the public interest does not weigh heavily in plaintiff’s [Wunderwerks] favor because, although plaintiff’s products may be legal under state law, the products offered by plaintiff are illegal under federal law.”

Clearly, some courts are still hesitant to afford cannabis trademark owners any relief at all, especially in the federal litigation context. We’ve been following all types of cases to see if things are improving, but this case is a reminder that the court system is slow to come around.

__

If you’re interested in other articles in the cannabis trademark space, here are two primers to start:

  • Does Your Cannabis Business Qualify for Trademark Protection? The Answer is Most Certainly “Yes!”
  • Revisiting the Basics of Federal Trademarks in the Cannabis Industry

And, for more articles on federal courts and the illegality defense with respect to cannabis, see the links below:

  • Cannabis Litigation: Third-Party Subpoenas and the Illegality Defense
  • Federal Courts are Going Backward on Cannabis
  • Cannabis Patents: Will the Illegality Doctrine Ruin Everything?
Expand all Collapse all
Is Delta 8 federally legal?

Delta-8 is legal federally, and most state laws don't specifically address it. Due to ambiguities in the 2018 farm bill, which legalized hemp and hemp products, delta-8 is currently not prohibited by federal law.

What are the benefits of Delta 8?

In the human body, Delta-8 binds to the CB1 and CB2 receptors. Because it binds to both receptors simultaneously, users experience a milder cerebral high. When compared to the effects of THC, users describe a more clear-headed, productive, energetic, and upbeat feeling.

Is Delta 8 or CBD better?

Difference Between Delta-8 THC and CBD Delta-8 THC may not be as prominent as Delta-9 THC, but it is still among the predominant cannabinoids with psychoactive properties. However, CBD is NOT a psychotropic cannabinoid. While CBD can have better results in the long run, Delta-8 THC can give you a quick fix.

Can you fly with Delta 8?

Is it Legal to Fly with Delta-8-THC? Often, yes! It is legal to fly with Delta-8 when you are flying to and from areas where Delta-8 is legal, as long as the airline you choose doesn't specifically prohibit Delta-8 products.

Does Delta 8 help with anxiety?

Contains less than 0.3% Delta 9 THC. Good for chronic pain and anxiety relief. It does not cause paranoia or increased Anxiety.

Is Delta 8 a controlled substance?

Delta-8 is considered a Schedule 1 Controlled Substance by the US Drug Enforcement Administration (DEA) because it is known to cause psychoactive impairment to the consumer.

What is the difference between Delta-8 and Delta 9?

Delta-9 THC is a property of cannabis discovered all the way back in 1964. The primary difference between Delta-8 THC and Delta-9 THC is that Delta-8 is just a bit less psychoactive than Delta-9. This means that products with Delta-8 THC have a more gradual, and therefore more satisfying, effect on the consumer.

Does Delta-8 become 11 hydroxy?

Although in an edible form, Delta-8 THC can metabolize into a natural chemical called 11 Hydroxy tetrahydrocannabinol. Since 11 Hydroxy THC can only be absorbed through the liver, the molecule's possible psychoactive effects can last up to 6 to 8 hours during digestion.

Does Delta 8 make you sleepy?

According to the NCI, Delta-8 uniquely binds twice with cannabinoid receptors in the nervous system that play a role in sleep by calming down processes like breath, heart rate, and mental activity.

Does Delta 8 Flower get u high?

Delta-8 THC is one of the hottest topics in cannabis right now. It's a minor cannabinoid that can get you high like traditional THC, but much less so. Delta-8 found in small amounts in the cannabis plant and is often converted from other compounds like CBD.

How does Delta 8 affect the body?

5 benefits delta 8 could offer you According to the National Cancer Institute, delta-8 THC can bind to the CB1 receptor throughout the body. These receptors are part of our endocannabinoid system, which helps our body regulate and maintain homeostasis.

Does Delta 8 contain CBD?

Delta-8 is yet another compound derived from Cannabis sativa or the hemp plant. As you likely know by now, this is the same natural origin that CBD, THC, CBG, CBN, and CBC come from, too. Though all of these compounds are related to some degree, delta-8 is closest to CBD and delta-9 (also often known plainly as THC).

Does Delta 8 cause euphoria?

Delta-8 may not produce intense euphoria, but it will take effect pretty quickly. Depending on your mode of intake, of course, the time of impact will vary. If you vape it, you will experience the effects within 1 to 6 minutes. If you use a tincture, you will get the first effects after half an hour.

Is Delta 8 legal in all 50 states?

The Short Answer: Yes. Hemp-derived Delta-8 THC products, containing less than 0.3% D-9 THC is legal in all 50 states of the USA. But what if the extract contains more than 0.3% Delta-9 THC?

Can Delta 8 help you lose weight?

A research study from 2004 concluded that delta-8 helps increase appetite while promoting weight loss. This effect is certainly very unique, and scientists will do even more research on this subject. These effects might be due to the potential benefits delta-8 has on metabolism.

Does Delta 8 give you munchies?

Yes, Delta 8 can make you feel hungry. Delta 8 is an appetite-stimulating analogue of tetrahydrocannabinol (or THC). Of course this depends on the amount you smoke (vapes) or consume (edibles), but Delta 8 has been reported to stimulate your appetite, in some cases, even more than Delta 9 (marijuana).

Does Delta 8 make you laugh?

Whatever makes you laugh, Delta-8 is a great way to start the fun. In fact, we've developed Delta-8 products because we love to see people laugh.

What does Delta 8 convert to eating?

Delta-8 THC actually converts into delta-11 THC when processed through the digestive tract. Since delta-9 THC also converts into delta-11 THC when eaten, there's no special benefit to eating delta-8 THC. In general, research suggests that delta-8 has about two-thirds of the potency of delta-9.

Does Delta 8 affect your liver?

In the present study, we have demonstrated that Δ8-THCV exerted protective effects against liver I/R reperfusion damage by attenuating tissue injury, oxidative stress and inflammatory response.

Does Delta 8 make good edibles?

Our Delta-8-THC Gummies — Best for Beginners They contain 10 mg of delta-8-THC per gummy, which is a great dose to start your journey into edibles with. It will give you a relaxing buzz, and you can easily increase the dosage as needed. Our delta 8 gummies are made from a broad-spectrum hemp extract.

You May Also Like

About the Author: Delta-8

Bamboo Pollen Sifter