If you sell a nicotine product and strongly deny that you market to children under age 18, you probably should not make your product look exactly like a popular children’s juice box. In addition to reflecting lazy marketing and downright uncool business practices, it is a violation of federal trademark law.
On March 12, 2018, Mott’s LLP filed suit in California against Tasty Cloud Vape Co., a manufacturer of e-cigarette vapor liquids. Mott’s lawsuit claims that Tasty Cloud’s marketing and selling of apple-flavored vapor liquid under the rhyming name “Watt’s” for “100% Apple e-Juice” and its use of confusing similar packaging is trademark infringement, trademark dilution, dilution by tarnishment and unfair competition.
As the complaint points out, Tasty Vape has indeed blatantly copied nearly every element of the Mott’s branding and apple juice box design. In addition to the rhyming name, the packaging uses the same yellow background, framing the name in a nearly identical oval shape complete with sunrays emanating from the second letter and use of a cute apple leaf as an apostrophe for Pete’s sake! They further copied the use of a two-tone leaf with nearly identical words in the same fonts and colors and red whole and sliced apples at the bottom of the box.
Mott’s trademarks covering its “Mott’s 100% Apple Juice” and other products were registered in 1966 and claim first use in commerce in 1842. Tasty Cloud began marketing its apple-flavored nicotine liquids in 2017. According to the complaint, Tasty Cloud has not complied with Mott’s written demands to cease use of their trademarks and trade dress.
In addition to the trademark infringement, Tasty Cloud appears to be either intentionally marketing to children by taking a lesson straight from the play book of Camel cigarettes and its infamous use of Joe Camel; or trying be tongue-in-cheek funny, a joke which has obviously fallen flat as vaping connoisseurs have being calling out the company as irresponsible on online forums as far back as eight months ago. As Juuls, flash-drive like e-smoking devices, become one of the most confiscated devices in middle schools and high schools lending support to the arguments for FDA regulation of e-smoking products, the intellectual property theft and irresponsible practices of companies like Tasty Vape only further cast a (smokeless) cloud over the entire industry.
Photo credit: Cypress LLP & Klemchuk LLP, attorneys for Mott’s LLP, Complaint in Case No. 2: 18-cv-02035.