DETROIT – Better Made is suing companies behind several Michigan marijuana dispensaries that they say are selling products with an altered, and unauthorized, version of the snack food company’s logo.
The popular Michigan potato chip company filed a lawsuit Wednesday, March 27 against nearly 20 companies and the marijuana dispensaries they operate in the state. Better Made says the businesses are selling a cannabis product labeled “Better Smoke,” whose logo is a spin off their own.
Better Made claims the use of their distinct logo design by Better Smoke is damaging to their brand, since customers may wrongly assume the cannabis products are affiliated with the food company. The defendants named in the lawsuit are being accused of federal trademark infringement and dilution, among other things.
Included among the defendants are several companies and their dispensaries from across all of Michigan -- from Traverse City, to Grand Rapids, to Adrian, and throughout Metro Detroit. Better Made is asking the court to make these companies give all of their profits from Better Smoke products to the actual snack foods company.
It’s clear that the Better Smoke logo is a play on Better Made’s iconic design, which has been around since 1930. But trademark parodies are actually pretty common among cannabis products -- at least at Michigan dispensaries.
Here’s a look at what trademark parodies are, and why Better Made may have a case.
Why is Better Smoke using Better Made’s logo?
The makers of Better Smoke aren’t directly using Better Made’s logo. They are, however, using a nearly identical design, but with different words that indicate they are selling a different product under a different name.
This is what’s known as a trademark parody: When someone reuses an existing brand or logo in a way that is humorous, satirical, or critical of the original brand. This practice is largely done with logos or bands that are widely known.
Parodies of other creations like songs and films may be more common, or at least more familiar. But, for the most part, they’re legal, too -- so long as the parodies are an exaggerated, or creative, or comedic take on someone’s work that’s meant to critique or comment on that work.
It appears that Better Smoke’s packaging and name are meant to be a humorous take on Better Made’s brand, but that depends on who you ask. At some point, Better Smoke’s logo featured a marijuana plant leaf rather than the Better Made’s specific shape, though it’s unclear when that branding was released.
There is a fine legal line when it comes to parodies -- especially trademark parodies.
Why Better Made is claiming trademark infringement
A trademark is known as a “source identifier,” which is a word, phrase, logo, slogan, general appearance or another item or concept that literally identifies the source of a good or service. Trademarks are meant to protect and verify a product’s source for consumers -- such as Nike’s swoosh or Adidas’ three stripes. When a shopper sees those designs, they know what brand the product is associated with.
Those designs, or whatever constitutes the trademark, are also referred to as “marks.”
In this case, Better Made argues that Better Smoke’s logo use is actually confusing to consumers, which is considered a viable claim for trademark infringement. Better Made claims the parody logo can cause buyers to be unsure about where the product originates.
Because the logos are so similar, Better Made argues that consumers might incorrectly believe the cannabis products and the food company’s products are affiliated with one another.
The defendants’ actions “deprive Better Made of the ability to control consumer perception of its goods and services offered under its Better Made marks, placing the valuable goodwill and reputation of Better Made into the hands of defendants,” the lawsuit reads.
The snack food company also argues Better Smoke’s version and utilization of a nearly identical design “dilutes” Better Made’s distinctiveness as a brand. That is considered a viable argument for federal trademark dilution.
In the lawsuit, Better Made specifically calls out defendant House Brands Distro, a cannabis distribution company in Michigan that makes the Better Smoke products. The lawsuit alleges that House Brands Distro “willfully violated Better Made’s rights” by manufacturing, distributing and selling a product using a logo “design that is an unmistakable reproduction of the Better Made design.”
Better Made claims its branding has become famous over the last nearly 100 years, and that the defendants have used it without authorization. Because those behind Better Smoke are making money from the products, they may be given less leeway than if their designs were for noncommercial use, experts say.
What Better Made wants out of lawsuit
The snack foods company is asking the court to take several actions in response to the lawsuit.
Better Made wants the defendants barred from using their design without authorization. The court is being asked to force the marijuana dispensaries to destroy all product labels, literature, online content, and advertising materials that feature the Better Smoke logo called into question.
Most notably, though, Better Made wants the companies to hand over all of the profits that came from selling Better Smoke products.
The plaintiff wants all defendants to “account for and pay to Better Made all profits derived by defendants resulting from their use of the Better Made marks,” the lawsuit reads.
Requests for comment were left with most of the listed defendants. No such requests had been returned as of Monday morning.
Cannabis companies use trademark parodies a lot
Those behind Better Smoke aren’t the only ones manufacturing or selling cannabis products with brands that look ... familiar.
Whether you shop for cannabis products online or in person in Michigan, you’re bound to witness a plethora of trademark parodies. The packages and brand names of several types of marijuana flower, cannabis edibles, and THC vapes are meant to evoke familiar brands -- especially those related to candy.
The company Clout King is well known for naming and designing their products around existing, high-profile candy brands. They sell a strain of marijuana named Air Headz, similar to Airheads candy. They also sell multiple strains named Terdz, a play on the candy Nerds.
Manufacturer Monster Xtracts is known for its microdose-sized cannabis edibles PoTartz, which are similar to SweeTarts, and Pot Dots, which resemble M&Ms.
VBJG Mt. Clemens LLC manufactures marijuana-infused apple cider drinks labeled Armada Cannabis Co. The design of the cans strongly resemble the design of hard cider drinks produced by Blake’s, an orchard and cider mill located in Armada, Michigan.
It’s unknown how or if Better Made’s lawsuit will affect the packaging for cannabis companies across Michigan in the future.
The U.S. Supreme Court heard a similar case last year, when Jack Daniel’s brought counter claims against a dog toy company for trademark infringement. VIP Products was selling a dog toy called Bad Spaniels that resembled the popular whiskey brand’s bottle. The toy explicitly stated that it was not affiliated with Jack Daniel’s.
The Supreme Court did not decide whether VIP Products committed trademark infringement. The high court instead overturned part of a lower court’s ruling that largely sided with VIP product, telling the lower court to review the case again.
In its published, unanimous decision, the Supreme Court ordered the lower court to focus on the question of whether the dog toy’s branding was likely to cause confusion for consumers. Trademark parody for a commercial product is specifically subject to something called the “likelihood-of-confusion analysis” under the Lanham Act, which is the U.S.’ core federal trademark law.
---> More on that case: Ruff day in court: Supreme Court sides with Jack Daniel’s in dispute with makers of dog toy
Experts say the Supreme Court’s ruling in that case could strengthen the rules for trademark owners, making it more difficult for parody trademarks to exist.
The Supreme Court case is known as Jack Daniel’s Properties, Inc. v. VIP Products LLC, 22-148.
Read: Lawsuit filed by Better Made
Below is the entire complaint filed by Better Made on March 27, 2024.