IP cases in the cannabis industry are lighting up court dockets more and more.  In a new case with potential for serious baggage, Kinzie Advanced Polymers, LLC (“Kinzie”) filed a federal lawsuit against a group of Oklahoma-based entities and individuals (collectively, “Defendants”) behind the KURE BAGS brand of cannabis storage bags.  Kinzie Advanced Polymers, LLC v. Jeremy Carrasco, et al, Case No. 5:25-cv-00576-PRW (W.D. Okla.).  The complaint alleges a range of intellectual property violations, including trademark and trade dress infringement. Kinzie alleges that the Defendants launched a competing product line that closely mimics its trademarks and branding.

Trademark Infringement

Kinzie owns several federal trademark registrations for its TERPLOC mark for, among other things, bags for storing cannabis and hemp products.  Kinzie alleges that Defendants’ use of the TERPSAVR mark for identical goods infringes its registered mark. 

TERP is likely a reference to “terpenes,” which are essential oils responsible for certain aromas associated with particular strains of cannabis.  LOC and SAVR may be understood as intentional misspellings of “lock” and “saver,” respectively.  So, each mark may convey that the bags are meant for securing the terpenes of cannabis within the bags.  But what scope of protection should they each be afforded?  Do the differences in sight and sound between LOC and SAVR outweigh the use of the identical term TERP?  These, among others, are the questions the Court must answer to determine whether a likelihood of confusion exists. 

Friends of the blog might recall that trademarks used on goods that are primarily used in connection with federally illegal substances, such as marijuana, are banned from federal trademark protection.  This is something we’ve routinely discussed.  See e.g., Blunders That Made ‘Bakked’ Cannabis TM Go Up In Smoke. If Kinzie’s goods are used for storing cannabis, does that mean its registrations may be challenged on this ground? 

Trade Dress Infringement

Trade dress protection applies to non-functional aspects of the packaging or design of goods. 

Kinzie alleges that the bright green accents, bold numerals, icons that signal freshness, mold prevention, and terpene retention that appear on its bags constitute protectable trade dress.  Further, it alleges that Defendants’ bags feature similar elements such that consumers may be confused as to the source of each of the parties’ goods.  Photos of the bags appear below (Kinzie’s bag on the left and Defendants’ bag on the right):

Is the black and green color scheme, circles with indicators of freshness, mold prevention, and terpene retention, and a clear portion of the bag to show the goods indicative of source?  If so, is the design of Defendants’ bags close enough to cause confusion among consumers?  Kinzie must persuade the Court that the answer to these questions is yes in order to succeed. 

Where Do We Go From Here?

It’s not possible to predict with certainty how this case may play out.  But we have some insights from prior cases.

Parties named as defendants in litigation involving cannabis companies have often sought to dismiss such actions based on the illegality doctrine: courts cannot be used to engage in unlawful conduct.  But previous attempts to dismiss cases based on the illegality doctrine have failed.  See e.g., California Ruling May Sow Seeds of Cannabis Patent Precedent. Accordingly, an attempt by Defendants to dismiss this case on that ground may not succeed. 

Kinzie seeks several forms of relief, including profit disgorgement, which requires a party that profits from its own illegal acts against an opposing party to give up profits made as a result of such acts.  

If Defendants’ goods are found to primarily be used for the storage of an illegal substance, i.e., marijuana, that would make them illegal under federal law.  Can you require a party in a trademark infringement case to disgorge profits made from its federally illegal activities?  At least one court says so.  See A RAW Deal – Court Opens the Door for Profit Disgorgement in Cannabis Trademark Case.

This case is more than a packaging dispute—it’s a signal to the cannabis industry that IP enforcement is heating up.  As cannabis brands mature, so does their need to protect their look, feel, and reputation.  And as this case shows, even a “new bag” can come with some serious legal baggage.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana. This week, there’s good news for supporters of medical cannabis in Nebraska, on both the litigation and regulatory fronts. In Virginia, a new governor will be elected in a few months; will that mean a retail market could finally be established? The U.S. House of Representatives voted to attached a medical marijuana provision to a military funding bill. And finally, we have some cannabis winners at the California State Fair.

Continue Reading The Week in Weed: July 4, 2025

In Adaptive Energy LLC v. Central Coast Agriculture, Inc., the Trademark Trial and Appeal Board (“Board”) dismissed two oppositions for failure to prosecute.  Oppositions Nos. 91275644 and 91280840 (April 11, 2025).  The Board granted Central Coast Agriculture Inc.’s (“Central”) motion to dismiss because Adaptive Energy LLC (“Adaptive”) failed to timely introduce evidence or testimony during the necessary period.  The lesson here is procedural: to advance your company’s trademark interests, you must know the rules.

The Case: A Concentrated Dispute

Central provides cannabis goods under its RAW GARDEN REFINED LIVE RESIN mark.  It filed two applications to register the mark with the United States Patent and Trademark Office for CBD containing herbs for smoking.  Adaptive opposed the applications alleging that consumers would likely confuse Central’s mark with Adaptive’s LIVE RESIN mark for supplements.

Central filed a motion to dismiss because Adaptive did not introduce evidence or testimony during its trial period.  Moreover, Adaptive did not properly introduce its pleaded prior registration.  This can be accomplished by attaching any registrations to a Notice of Opposition.

Adaptive argued that it was clear from the beginning of the proceedings that it would submit evidence and testimony along with its opening brief.  But this argument perhaps got the Board fumed.  Here’s why:

Trademark Rule 2.132(a), provides, in relevant part, “if the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant judgment for the defendant … [t]he party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case.  In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff.”

In its decision on Central’s motion to dismiss, the Board cited Rule 2.132(a) and noted that a “brief may not be used as a vehicle for the introduction of evidence.”  Further, Adaptive made no showing of excusable neglect regarding its failure to introduce evidence and testimony.  Accordingly, the Board dismissed both oppositions with prejudice.

This case is a wake-up call for cannabis brands and legal professionals alike: you have to know the process and procedures for Board proceedings.  If you don’t follow them, your case can fail before it even begins.

Final Hit: Legal Strategy Is Half the Battle

The Board’s dismissal of these oppositions isn’t just a win for one brand.  It’s a reminder that in trademark law, strategy and substance must go hand in hand.  Whether you’re blazing a trail in the cannabis industry or defending an established brand, knowing the rules isn’t optional – it’s essential.

So before you file that opposition or respond to one, take a moment to ask some simple questions.  Do we have appropriate evidence?  Do we understand the burden?  Do we know the rules?  Because in Board proceedings, failure to adhere to the rules can get you burned.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana. This week, a bill headed to the President’s desk may ease restrictions on cannabis research. Facebook and Instagram now allow searches relating to marijuana on their platforms. Cannabis licenses in California are not worth what they once were. And finally, Snoop Dogg is moving into the hemp market.

Continue Reading The Week in Weed: June 20, 2025

I don’t wanna grow up, I’m a TOYS R US kid.  So, many of us grew up with this commercial jingle and it along with the brand brings back positive memories of celebrating birthdays and holidays.  But what happens when a company operating in a not so kid-friendly field starts using a trademark similar to that of the TOYS R US mark? 

In a case that blends nostalgia with modern controversy, Tru Kids Inc., the owner of the TOYS R US mark, filed suit in the U.S. District Court for the District of Connecticut against a vape and cannabis retailer operating under the name VAPE R US.  The complaint alleges trademark infringement, dilution, false designation of origin, and unfair competition under both federal and state law.  Tru Kids Inc. v. Vape R Us, Inc. et al, 3:25-cv-00781-VAB (D.Conn.). 

At the heart of the dispute is the retailer’s use of branding that closely mirrors the iconic TOYS R US trademark and others associated with the brand.  According to the complaint, the vape shop’s signage features multicolored bubble letters, a reversed “R” with a star, and even a depiction of Geoffrey the Giraffe.  The long-standing mascot of the toy brand appears with a not so familiar “toy”—a vaping device.

A Question of Confusion and Tarnishment

Tru Kids argues that the similarities are not coincidental but calculated.   The company claims that the vape shop is attempting to trade on the goodwill of the TOYS R US brand, misleading consumers into believing that there is an affiliation between the two businesses.  The complaint emphasizes that Tru Kids has spent decades cultivating a “fun, safe, and kid-friendly image,” and that association with smoking and drug-related products could irreparably tarnish that reputation.

If you came across the VAPE R US shop, would you really be confused into believing a toy retailer has entered the vape and cannabis market?  Perhaps not.  But Tru Kids may have another option to shut down the allegedly infringing use.

In addition to a likelihood of confusion claim, Tru Kids also pled dilution by tarnishment.  Likelihood of confusion focuses on whether consumers will be misled as to the source of goods or services because of the same or similar marks offering the same or related services. Dilution claims, however, can succeed even in the absence of confusion.  Dilution by tarnishment occurs when the distinctiveness of a mark is damaged by connection to something that is unflattering or unsavory. 

Whether vaping or consumption of cannabis is unsavory is not for us to judge, rather the court. 

Before the court may even consider that issue, Tru Kids must establish that its mark is “famous” under trademark law.  A mark is “famous” if it is widely recognized by the general consuming public of the United States as a designation of source for certain goods or services of the mark’s owner.  Think a certain hamburger chain with colorful arches or a coffee shop with a mermaid on its door.

A Familiar Playbook

This isn’t Tru Kids’ first foray into defending its brand against cannabis businesses.  In 2023, the company filed a similar suit against a Brooklyn-based dispensary operating under the ZAZA R US mark.  These cases suggest a broader strategy: aggressively policing the TOYS R US brand against unauthorized use in industries that conflict with its core identity.

What’s Next?

Tru Kids sent a cease-and-desist letter to Vape R Us on May 5, but it did not comply, which triggered the lawsuit.  The case is now pending in federal court.  If the court finds in favor of Tru Kids, it could open the door to injunctive relief, damages, and potentially even profit disgorgement.  The latter remains a complex issue in cases involving federally regulated substances.  This is a topic we’ve previously discussed.  See https://www.blunttruthlaw.com/2025/03/a-raw-deal-court-opens-the-door-for-profit-disgorgement-in-cannabis-trademark-case/. 

As the case unfolds, it may serve as a cautionary tale for businesses that attempt to parody or piggyback on well-known brands, especially when the industries involved are as divergent as toys and smoking products.  For now, it seems like Vape R Us may have played with fire and could end up getting burned.

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana. This week, Texas is the center of gravity in the hemp world. The First Circuit rules against cannabis businesses. Medical marijuana protections are not included in the federal budget proposal. And finally, the Rolling Derby goes global.

Continue Reading The Week in Weed: June 6, 2025

A recent opinion from the Eastern District of Pennsylvania serves a win to a medical marijuana card-holder who brought claims against an employer under the Americans with Disabilities Act (“ADA”), the Pennsylvania Medical Marijuana Act (“MMA”), and Pennsylvania common law.  The decision reflects careful fact pleading by the plaintiff.  It also highlights a number of important themes for Pennsylvania employers, including the importance of evaluating job duties and having legitimate reasons for policies prohibiting off-duty marijuana use.  In jurisdictions with employment protections for medical marijuana users, the decision also underscores the care employers should take if an employee or applicant discloses that they are a lawful medical marijuana user.

Continue Reading Pennsylvania Medical Marijuana Card-Holder Survives Employer’s Motion to Dismiss

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana. This week, the White Earth Nation signed a compact with the state of Minnesota allowing off-reservation cannabis sales. A ban on hemp containing THC passed the Texas Legislature. There’s a new adult-use marijuana bill in Pennsylvania. And finally, someone picked a pound of weed out of a discount store in Iowa.

Continue Reading The Week in Weed: May 30, 2025

Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana. This week, we have an update on the Nebraska situation. We hear that the administration’s nominee for DEA head won’t commit to rescheduling. The DEA released its 2025 National Drug Threat Assessment. And finally, Whoopie Goldberg has a new cannabis beverage.

Continue Reading The Week in Weed: May 23, 2025