We are always preaching about the importance of branding and trademarking as a means of increasing reputation and sales. For a few examples of this, check out the following posts:
- Protect Your Cannabis Brand With A Trademark
- Take Your Marijuana Business Nationwide With Brand Licensing
- Cannabis Branding. Because It Is Important.
Adam Stites, founder of Mirth Provisions in Washington State, is serving up cannabis infused cold-brew coffee beverages, as well as a range of sparkling cannabis infused juices, that are right on point in terms of branding. Mirth Provisions’ manifesto, which declares this is the time “to enjoy our new freedom to the fullest with the finest cannabis infused into the tastiest edibles and drinkables,” isn’t only about creating a line of tasty edibles and drinkables – it’s about engaging and capitalizing on a cultural movement that will continue to grow as cannabis continues moving into the mainstream. Branding that appeals to a mainstream consumer audience is branding that will get the media’s attention and help build a branding legacy.
The media is loving Mirth Provisions’ cannabis coffee with headlines like, “‘Weed Coffee’ to go on Sale in Washington – and it’s Definitely Legal,” “Marijuana Coffee Promises Different Morning Jolt,” and “There’s a Marijuana Coffee that Really Lets You ‘Wake and Bake,’” and Mirth is loving the media right now as well. Mirth even got a mention (in mild jest) on The Tonight Show with Jimmy Fallon (minute 4:23).
Mirth has nailed a branding strategy that appeals to the mainstream, and the media is talking about it. In turn, all of this media further builds Mirth’s brand, buzz (no pun intended) and sales.
But what happens when your successful branding strategy garners you national (and even international) media recognition, and your inbox is flooded with opportunities to take your brand nationwide? Don’t most states prohibit out-of-staters from applying for the licenses or permits needed to grow, process or sell marijuana? As we have said before, this “home-towning” does not prevent you from taking your brand and business skills nationwide. You have the ability to license your intellectual property and sell consulting services. These strategies can allow you to legally leverage your brand name and expertise in multiple states.
Regardless of where you decide to take your brand, protecting it is critical. Trademarks are the most straightforward way for cannabis businesses to protect their brands – take a look at brand names like Coca Cola and Google, both of which are famous trademarks. As we have emphasized before, registering your brand as a trademark should be your first step in protecting and ensuring that other businesses cannot use your brand name without your permission.
Though the federal government typically will not register cannabis product trademarks due to the federally illegal nature of the product, many state governments will. Not only do state registrations provide protection within the individual state, they also put other businesses on notice that you’re claiming first use of the brand, which will no doubt prove valuable when the federal government finally legalizes marijuana and starts registering cannabis trademarks.
Of course, the converse to protecting your own brand is making certain that you are not infringing on someone else’s brand or trademark. No business wants to be sued for trademark infringement as lawsuits are virtually always expensive and there are companies that literally had to shut down after such a lawsuit. My law firm’s IP and litigation lawyers are right now defending against a trademark lawsuit brought by Hershey’s alleging trademark and trade dress violations against our client for allegedly using the “Reefer’s” and “Mr. Dankbar” names in alleged violation of the “Reese’s” and “Mr. Goodbar” trade names.
Before adopting trademarks for their businesses, cannabis business owners should make sure that they “clear” their marks by performing proper trademark searches. Simply doing a “Google search” is inadequate, as such a search is unlikely to identify all prior trademark rights that could be an obstacle to your chosen mark. Though a comprehensive trademark search is the best practice, other types of searches can be carried out depending on the circumstances. By consulting trademark counsel on these and other branding issues, cannabis business owners can avoid the expensive problems others are experiencing now.
And what about those secret recipes for your marijuana concoctions? Those methods for infusing your tasty edibles and drinkables? You may not be able to patent your products, but you may be able to protect them as trade secrets under the Uniform Trade Secrets Act, which has been adopted, in one form or another, by forty states, or simply under common law (non statutory) trade secret law. A trade secret is any information, such as formulas, methods, techniques and processes that derives independent economic value from remaining secret – again, think Coca Cola and its recipe, the best-kept trade secret of all time.
To obtain trade secret protection, you must make reasonable efforts to maintain the information’s secrecy. Perhaps the most crucial component in protecting your trade secrets are well-drafted non-disclosure agreements in place for all employees, licensees and any other parties who may have access to confidential information. If you are revealing your trade secrets without such a confidentiality agreement in place, there is a very good chance that a court will deem them to no longer be trade secrets at all.
Mirth Provisions is a pioneering story of branding success in the cannabis industry. As you work to differentiate your products from other company’s products, don’t forget to protect one of your greatest assets: your brand.
Editor’s Note: This is the first of what we plan as an ongoing series of posts in which we highlight the successes of our own cannabis clients. If you are one of our clients and you wish to be written about here on our blog, please let us know. By highlighting these successes (of businesses we know well), we believe that we will be providing an instructional manual of sorts as to what it takes to succeed in this business. And hey, we will not be charging hundreds or thousands of dollars either.