With new products or new markets come new risks.  Since marijuana has been legalized in Washington State, new products are now allowed on the market.  One such product is called “Reefer’s Peanut Butter Cup.”  The Hershey Company, owner of a registered trademark for REESE’S PEANUT BUTTER CUP sued the makers of the Reefer’s cups for trademark infringement.

In general, when a new product enters the market, the new product can get a head start in building consumer recognition by aligning itself with well-known brands.  Hershey will probably argue that sort of “free-riding” is happening in this case.

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Also, Hershey may argue tarnishment, i.e., that the association of its products with a drug that is illegal in most parts of the country creates a negative impression of its brand.

The term “Peanut Butter Cup” is merely descriptive, if not generic, such that it is not protectable as a trademark.  Also, there are some differences in the packaging of the two products.  However, the font and colors of the Reefer’s packaging, shown here, overall are similar to those of REESE’S.  Moreover, the precedent of Coca-Cola Co. v. Gemini Rising, Inc., seems pretty applicable.  In that case, Coca-Cola won an injunction against defendant’s satirical “enjoy Cocaine” poster.