Ninth Circuit Upholds Trademark Protections for Manufacturer of E-Cigarettes Containing Delta-8 THC

Ninth Circuit Upholds Trademark Protections for Manufacturer of E-Cigarettes Containing Delta-8 THC
CANNANNEW REPORT

Ninth Circuit Upholds Trademark Protections for Manufacturer of E-Cigarettes Containing Delta-8 THC WRITTEN BY: Snell & Wilmer Contact   David Barker Andrew Green The Ninth Circuit affirmed a preliminary injunction in favor of AK Futures LLC (“AK Futures”), a manufacturer of e-cigarette and vaping products, against Boyd Street Distro, LLC (“Boyd Street”), a Los Angeles-based storefront and smoke product wholesaler that had allegedly been selling counterfeit versions of AK Futures’ products. The lawsuit centered on AK Futures’ “Cake”-branded delta-8 tetrahydrocannabinol (“delta-8 THC”) products. Delta-8 THC is a chemical compound that occurs naturally in the cannabis plant and can be grown into either hemp or marijuana depending on cultivation method. The FDA categorizes delta-8 THC as a “psychoactive substance” with “intoxicating effects” similar to delta-9 THC, which is the component responsible for the “high” people experience from using cannabis. AK Futures originally devised its Cake brand in October 2020, which was depicted in a two-tier cake overlaid with a stylized letter “C”. The company registered the Cake logo with the US Copyright Office and also filed trademark applications for the word Cake and the Cake logo (logos depicted below). AK Futures sued Boyd Street in June 2021 for copyright infringement and federal unfair competition and false designation under the Lanham Act. The district court granted AK Futures’ motion for a preliminary injunction and enjoined Boyd Street from selling goods bearing imitations of AK Futures’ two Cake logo trademarks. Boyd Street appealed the preliminary injunction but not the finding that it was selling counterfeit versions of AK Futures’ Cake products. Instead, Boyd Street argued that AK Futures could not own a valid trademark in connection with Cake-branded products because federal law forbids possession and sale of delta-8 THC. Since only lawful use in commerce can give rise to trademark priority, Boyd Street claimed a brand used in…

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Source : Ninth Circuit Upholds Trademark Protections for Manufacturer of E-Cigarettes Containing Delta-8 THC

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