Joke or counterfeit? Balancing trademark parody and consumer safety in the edibles market

Abstract

Children mistakenly eating tetrahydrocannabinol-laced gummies thinking they are Halloween candy. Adults overdosing on seemly innocent and fun-looking “edibles.” These all-too-common occurrences are a serious problem in the growing market for cannabis-related products. A significant part of the risk stems from the broad acceptance and expectation of parody marketing in the field, which has contributed to these dangerous misunderstandings. Importantly, recent changes to trademark law have limited the commercial use of parodies as marks, strengthening the hand of brand owners to police harmful impersonation while preserving legitimate speech. As a result of the more restrictive environment, trademark law and consumer safety rules are increasingly congruent and a greater array of stakeholders with significant financial resources now possess the power and incentive to reduce the danger. This article uses the above cannabis marketing conflict as a framing tool for exploring the limits of trademark parody in an important yet under-examined context: when safety concerns clash and arguably supersede speech. The existing literature has typically considered parody in innocuous and often noncommercial applications. Such limited review underappreciates instances when trademark confusion or dilution through parody lead to serious health consequences, particularly for vulnerable audiences such as children. Additionally, to the extent that the literature does address cannabis and trademarks, it has generally focused on cannabis branding issues as opposed to infringing the rights of others. This article bridges the gaps. Moreover, it integrates a consideration of the impact of recent Supreme Court cases, Jack Daniel's Properties, Inc. v. VIP Products LLC and Vidal v. Elster, that reflect a tighter circumscription on speech protections for unauthorized use. It concludes with the observation that not all parodies are equal in terms of balancing speech and safety. And with evolving trademark law, there is increasingly an incentive for various stakeholders to collaborate to enhance consumer safety.