TinctureBelle Responds To Pot-Candy Trademark Suit

Last week, we wrote about a new trademark infringement lawsuit filed by Hershey against marijuana-candy manufacturer TinctureBelle. The gist of the Hershey’s lawsuit is that TinctureBelle allegedly ripped-off the branding of Hershey candy in marketing the pot candy. Now, TinctureBelle President Char Mayes has responded to the lawsuit with the following statement:

The lawsuit from Hershey came as a huge surprise to us because we changed our entire label line approximately 6 months ago, long before these allegations surfaced last week. Our new packaging looks nothing like Hershey’s or anyone else’s. . . . The suggestion made by some media reports that our products are available to children, and even sold side-by-side with Hershey products, is dumbfounding, and shows a profound lack of awareness of how infused cannabis products are regulated, manufactured, and sold under Colorado’s strict regulatory regime.

Mayes provided the Washington Post with the following photos as evidence of the change:




We here at Abnormal Use must admit that we much prefer the original Hersheyesque packaging to the TinctureBelle revisions. Of course, opinions similar to these are probably what inspired the suit in the first place. If the packaging was, in fact, changed six months ago, however, what is Hershey really seeking to accomplish? A share of TinctureBelle’s pre-alteration proceeds? Seeing as all marijuana has only been legal in Colorado for six months and, thus, the only pre-alteration proceeds would have been from the medicinal sale of the candy, we doubt Hershey will have a lucrative end game.

This lawsuit has all the makings of a Bucky Balls-type fight. We will be sure to keep you posted as events transpire.

Friday Links


Oh, my. It’s Friday the 13th, which means that we must pause in apprehension to consider the implications of such a frightful day. It also gives us an opportunity to talk about scary movies. Above, you’ll find the cover of Friday The 13th: Fearbook, published not so long ago in 2006 by Avatar Press. Trust us when we say that it one of the few Friday The 13th comic book covers we felt comfortable sharing with you, our dear readers. The rest, of course, were NSFW. On a similar occasion, back in 2013, we wrote:

It is Friday the 13th. Yikes. We thought about using the cover of one of the many Friday The 13th comic book adaptations in today’s post, but they were all too violent.

Very true. Earlier that year, we exercised a similar level of restraint:

By the way, don’t forget that today is Friday the 13th. Be careful out there, folks. (Please note that we resisted the urge to post the cover of a Friday The 13th comic book adaptation.).

In 2012, we posted a relatively tame Superboy cover but warned:

Today is Friday the 13th.  Beware.

All that said, on Friday, July 13, 2012, we dedicated our Friday Links post to the Friday The 13th film series, so please see here for that.

On an unrelated note, Plaintiff’s lawyers are now using Google Glass to create point of view “day in the life” videos for their clients to play before the jury. For more on that development, see here.

The TortsProf Blog notes that New York University law professor Cathy Sharkey has posted two new pieces to SSRN, including Tort-Agency Partnerships in an Age of Preemption and Agency Coordination in Consumer Protection. For more on that, please see here. We mention this, of course, because way, way back in March of 2011, we interviewed Professor Sharkey, and you can revisit that piece here.

Big news! Yoko Ono has settled a lawsuit!

Kevin Underhill’s funny book, The Emergency Sasquatch Ordinance, is now available as an e-book. See here for our interview with Kevin about this project.

Legal Marijuana Candy Sees First Trademark Suit in Colorado


A hot topic of recent months has been the legalization of marijuana. After the State of Colorado legalized it, we here at Abnormal Use wondered what legal problems might arise when those laws went into effect earlier this year. We certainly suspected that there would be litigation, but a new suit filed in federal court  is not exactly what we had in mind. The Hershey Company has filed suit against TinctureBelle, LLC, alleging that the Colorado candy manufacturer’s marijuana-infused chocolates improperly mimic the names of famous Hershey products. According to a report from Denver’s ABC-7:

The lawsuit argues: “Defendants, who are well aware of the fame and popularity of these Hershey products and marks, are manufacturing and selling cannabis- and/or tetrahydrocannabinol-laced chocolate and candy products using names, marks and designs that are knock-offs of Hershey’s famous REESE’S, HEATH, ALMOND JOY and YORK trademarks and trade dresses, in order to increase sales of defendants’ cannabis and tetrahydrocannabinol candy products, draw additional attention to their products, confuse consumers as to the source of their products, call to consumers’ minds Hershey’s famous and beloved brands, and otherwise to trade on the goodwill of Hershey and its brands.”

We understand Hershey’s concerns about trademark infringement, but surely it is an honor to be the first company honored by legal pot candy. It is difficult to get too upset with TinctureBelle when its creativity inspired names such as “Hashees” (Reese’s) and “Ganja Joy” (Almond Joy). Again, Hershey has the right to be concerned about trademark confusion, and we certainly understand the basis for the litigation. On the other hand, we seriously doubt consumers are buying these products because of their resemblance to Hershey products. After all, TinctureBelle has its own secret ingredients.

The Beastie Boys Smack Down Monster Beverage

The Beastie Boys are back in the news, but it’s not for the band’s music.  Rather, they recently obtained a $1.7 million verdict in a New York copyright infringement and false endorsement lawsuit against Monster Beverage (the makers of Monster Energy drinks) over the company’s use of the musical trio’s music and image in a promotional video. The lawsuit stemmed from the energy drink maker’s use of the Beastie Boys’ likenesses and five songs as part of a “megamix” in a snowboarding video titled “Ruckus in the Rockies.”  The video was posted on a promotional website back in 2012.  According to Monster, the whole thing was just a big misunderstanding. Apparently, an employee “inadvertently” believed Monster had been given rights to use the music.  Monster only contested damages at trial. Nevertheless, the jury came back with a “monster” judgment.

As you might suspect, Monster was not too happy with amount of the award.  The company had contended that the damages only amounted to $125,000.  Admittedly, the award does seem a little large, but it is not outrageous. “Syncing,” which is the industry term for reusing a song for commercial purposes, generates approximately $322 million per year for the music industry.

This isn’t the only time the Beastie Boys have had to “fight for their rights” this year.  In March, the group settled with a small toy company over its use of the song “Girls” in a video that went ultimately viral.

The GM Ignition Switch Defect and The Texas Manslaughter Charge

the fugitive

By the time this blog post goes live, GM will probably have made public the results of its internal investigation regarding how it responded to an ignition switch defect.  Part of the inquiry involves delving into why GM apparently waited more than ten years to recall 2.6 million small cars with faulty ignition switches linked to at least 13 deaths. Reportedly, a Texas woman, Candice Anderson, was recently informed that a GM ignition defect was responsible for her fiance’s 2004 death, in connection with which she pled guilty to manslaughter.  Apparently, she was driving a Saturn vehicle and her fiance had the misfortune of being the passenger.  The car left the roadway without leaving any skid marks or other signs of causation.  Anderson survived.  Her fiance perished. Anderson happened to have trace amounts of anti-anxiety medication in her system.  Anderson was charged with manslaughter, but pled guilty to negligent homicide. Anderson reportedly wants an apology from GM.  Unless the statute of limitations has expired, we have a feeling that Anderson may be destined for more than an apology.

Brace Yourselves, Netflix-Verizon Error Message Litigation is Coming

error message

There’s nothing worse than an error message; it’s like an electronic flat tire.  Your Internet activity comes to a screeching halt and your computer freezes.  So, you then click the “x,” but the “x” won’t click.  Then you press the “esc” key that had a good run in the 90’s, but it just doesn’t really do anything anymore (but it’s still worth a shot).  You then press the ctrl+alt+delete, using three of your fingers that should never be forced to work in concert.  If that doesn’t work, you hold the round button on the computer machine for ten seconds until the light goes off.  If that, too, fails, you buy a new computer.

We can all agree that the error message is one of the worst first world problems one can experience.  Reportedly, Verizon is litigious and unhappy that Netflix has attempted to link Verizon to this unpleasant experience in the minds of Netflix customers. Apparently, whenever there is an interruption in a Netflix video that is playing on Verizon’s network, Netflix displays an error message that essentially blames the error on Verizon.  Verizon is not appreciative of this association.  Things have apparently escalated to the point that Verizon has fired the first snail mail shot over the bow and threatened to sue if Netflix does not cease and desist.

We at Abnormal Use do not pretend to understand the series of tubes in enough detail to weigh in on who is to blame in this spat over streaming Internet entertainment, but we will say that we do not endorse the erroneous messaging of error messages.  But we await the litigation thereof.

Friday Links


What is happening on the cover of Public Defender in Action #8, published way, way back in 1956? It seems that Richard Manning, the title character, has been disturbed by something happening just outside of his office window. We see a police officer apparently pursuing another gentleman – who may or may not be Manning’s client.  Are we supposed to guess? What gives? (Note: We’ve previously mentioned the Public Defender in Action series here and here).

If you haven’t already, you may want to read this piece on the U.S. Supreme Court’s previously unknown practice of editing opinions after their release.

Who is going to the North Carolina Bar Association annual convention next week in Wilmington? Our editor Jim Dedman will be there, so say hi if you see him.

Our favorite headline this week: “Underground booze slushies not as innocent as they look.” That falls under food regulation, right?

Baylor University is threatening suit against the Baylor Alumni Association. To learn more about that dispute (and to read Ken Starr’s letter to the alumni group), see here.

CPSC Finds New Target With Inflatable Bounce Houses

Last month, two boys in New York were injured after falling 20 feet from an inflatable bounce house swept into the air by a gust of wind. Last week, two children in Colorado were injured when the inflatable bounce house in which they were playing rolled across a field due to heavy winds. Now, our good friends at the Consumer Product Safety Commission (“CPSC”) are launching their own investigation into the fun that is the casa de aire. In a statement given to USA Today, CPSC spokesman Scott Wolfson stated:

We’re going to look into what were the conditions prior to the incident, what led to the incident itself. . . [T]he fact that we are focusing on these two show that we are making it a priority.

The inflatable house industry might want to ask Buckyballs what it is like to be number 1 on the CPSC’s hit list.

We here at Abnormal Use are traditionally not big fans of the CPSC. This latest investigation is likely not going to alter that status. The CPSC has a useful purpose – to regulate product safety. Apparently, that focus has extended into regulating the weather itself. If these were cases of children injured because the inflatables posed a strangulation or similar-type hazard, then the CPSC has its role. But, that is not the case. Both of these incidents are freak accidents resulting from extreme gusts of wind. The problem is not with the product itself, but rather with the use of the product in certain weather conditions.

We do not know what product warnings the inflatable bounce houses may possess. If they haven’t already done so, we imagine the manufacturers will add a “Do not use in heavy winds” warning as a result of this investigation. Certainly the warning would be useful to those unaware that a product filled with air could be carried away by the wind.

(Editor’s note: We blogged on bounce houses way, way back in 2010. For that post, please see  here.).

If You Blog It, They Will Come

An inexplicable coincidence happened some time ago.  I prepared a blog post about a new lawsuit filed in the area and saved the draft on our blogging platform and placed it in the queue for review by our editor. When we learn of interesting complaints in the area, we sometimes write about them, and this is what I did in this case.

The following afternoon, I received a call from a number I did not recognize.  The caller ID indicated that the call was from the corporate offices of the defendant in the lawsuit about which I had just drafted a post.  I assumed that the blog post had gone live and that someone was calling to discuss the post, clarify the facts, tell me to remove the post, etc. To my surprise, the caller was the in-house counsel at the defendant corporation calling to retain our firm in the that very lawsuit.  During the discussion, I checked our blog site and learned that my post had not yet gone live.  We took the case and elected not to run the post.

I have racked my brain in an attempt to understand this coincidence without avail.  Perhaps it was magic.

If anyone needs me, I will be typing a novel about a former litigator who had no choice but to retire at the age of 30 after winning the lottery five times in a row.

Interesting Thoughts From The Fourth Circuit In Asbestos Removal/Remand Case

In the Fourth Circuit’s recent Barlow v. Colgate Palmolive Company, a dissenting judge determined that the majority rewarded the plaintiffs’ counsel’s bad behavior by refusing to vacate the remand order.  The facts underlying this opinion are very interesting.  The asbestos plaintiffs alleged their illnesses were caused by exposure to asbestos-containing products manufactured by a number of defendants, including Colgate.  Specifically, the plaintiffs contended that their use of Colgate’s “Cashmere Bouquet” power makeup products, which they contended “contained unhealthy levels of asbestos” caused their health problems.  However, plaintiffs also named their employers—in-state defendants, which destroyed diversity.

Despite the inclusion of the in-state defendants, Colgate removed the case to federal court arguing that the inclusion of the in-state defendants was fraudulent because the discovery taken in the case, including plaintiffs’ deposition testimony, clearly demonstrated that plaintiffs did not intend to pursue any other defendant.  Plaintiffs’ counsel moved to remand the cases and represented that there was some circumstantial evidence that the plaintiffs may have been exposed to asbestos as a result of working for the in-state defendants.  Based on those representations, the federal district court remanded the cases to state court.

Eight days after remand, plaintiffs moved to sever their cases from a trial group that was consolidated for trial.   In this motion, plaintiffs’ counsel specifically argued that plaintiffs were only arguing that the exposure to the Colgate “Cashmere Bouquet” products was the cause of their illness.  Counsel further disclaimed any exposure to asbestos at the plaintiffs’ worksites caused their illnesses.  Counsel went a step further and stated:  “In short, there is absolutely no evidence to indicate or even suggest that the Plaintiffs were exposed to asbestos in any form other than Cashmere Bouquet.”

Naturally, after receiving this motion, Colgate filed a motion with the federal district court requesting “vacatur of the remand order as a sanction.” The majority decided that it had no authority to provide such relief because the “federal removal statute generally prohibits review of orders remanding removed cases.”  The court determined that precedent also did not support Colgate’s requested relief because the court has “said, unequivocally, that ‘the district court has one shot, right or wrong,’ to decide whether a removed case should be remanded.” Further, the court rejected Colgate’s argument that it was not seeking “review” of the federal district’s court’s determination because “it seeks to relitigate the merits of an issue already litigated: whether the plaintiff’s fraudulently joined the nondiverse defendants, which was the issue the first-time around.” The court inexplicably concluded:  “Colgate had its chance to prove fraudulent joinder.  It failed.  It does not get a second try with an improved record.” Finally, the court determined that “if Congress wanted to carve out an attorney-misconduct exception to the prohibition on review of remand orders, it would have done so.”

The dissent, while acknowledging that Federal Rule of Civil Procedure 11 did not provide authority to vacate remand orders, reasoned that the federal district court did have jurisdiction to entertain the Rule 11 motion.   The dissent found the majority’s research regarding cases in which court’s embraced Colgate’s argument to be lacking and noted “it appears that every federal court that has addressed” these issues, even the Fourth Circuit. Further, the dissent referenced opinions issued by the Supreme Court of the United States that also determined that federal district courts had jurisdiction to sanction plaintiffs’ counsel.

Furthermore, the dissent determined the majority’s reliance upon the “one-shot” language in Lowe to be misplaced and explained:  “[I]f a litigant could flout his duty of candor before a district court and secure remand by misrepresentation, knowing that such remand is never subject to vacatur, he would lose all incentive to present the facts of a case honestly to the court during removal.”  The dissent was also critical of the majority’s statement that it would not carve out an exception if Congress had not done so by noting that the case to which the majority cited—Powerex Corp. v. Reliant Energy Servs., Inc. , 551 U.S. 224 (2007)—recognized exceptions that were not carved out by Congress. In sum,

 If honesty in the judicial system means anything, it means proceeding with candor before the tribunal, which plaintiffs’ counsel did not do during the removal proceedings.  Whatever prolonging of this litigation vacatur of the remand orders might cause [plaintiffs] have only their own lawyers to blame.  And the truth is well worth the delay.

Id. at 58.