Editor’s Note: A version of this article by Fred Rocafort was first published on Law360.
The U.S. Constitution’s free speech protections, found in the First Amendment, may present a legal recourse for cannabis brands in trouble for using marks that are similar to famous trademarks.
To be clear, a free speech argument will not be of help to those who simply copy a famous trademark, making no effort to differentiate between their mark and the famous one.
In the case of trademarks that simply evoke famous ones, however, the First Amendment could help preclude infringement claims.
Famous trademarks are a not-uncommon source of inspiration for brand creators. At times, brands take that inspiration too far, effectively appropriating a famous trademark.
For example, candymaker Ferrara Candy Co. sued a company called Akimov LLC in the U.S. District Court for the Southern District of Florida in May, alleging that it was selling THC-containing products bearing some of Ferrara’s registered trademarks, including those for its Nerds and Trolli candies.
Assuming the allegations are true, Akimov was not using marks inspired by Ferrara’s, but rather using Ferrara trademarks without authorization.
The harm presented to Ferrara and the public by the presence in the market
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