The legalization of recreational marijuana in Colorado and Washington has lead to many novel intellectual property issues.

For example, in March 2014, a new state tax was proposed that would on Washington marijuana-related businesses seeking IP protection. Specifically, a tax of $3.60 would be assessed per $1000 of value of a business’s IP assets, including trademarks, trade names, brands, patents, and copyrights related to marijuana.  The intended purpose of the tax is to “capitalize on [Washington’s] unique position” and use the generated revenue for agricultural research.  Dissenters point to several shortcomings, arguing that the bill discourages business from seeking trademark protection, penalizes companies with the best reputations, and fails to stipulate how the tax will be calculated.

Edible Marijuana and High Stakes Consumer Confusion

Marijuana has also entered the world of Hershey’s high-stakes trademark litigation, which was recently settled.  In June, Hershey Co. filed a lawsuit in Federal District Court against a Colorado-based marijuana candy manufacturer for producing products that resembled many of Hershey’s flagship products, including Reese’s Peanut Butter Cups, Almond Joy, Heath bars and York Peppermint Patties. Hershey’s allegations against Tincturebelle, LLC included trademark dilution, trademark infringement, false designation of origin, unfair competition, and passing off.

Hershey’s claimed consumer confusion would result in the dilution of their trademarks, they also cited the uniquely severe impact that confusion in this case could have on minors. Namely, consumer confusion of Hershey product with the infringing products could have the disastrous result of accidental ingestion by children.  As part of the settlement agreement, the defendants agreed to destroy any remaining infringing products.

What to Expect in the Near Future

Tincturebelle, LLC is not the only edible manufacturer Hershey has filed suit against— Conscious Care Cooperative, based in Washington, has also been named in a trademark infringement suit. Hershey has made similar allegations against the edible manufacturer.

As the edibles industry and the larger recreational marijuana industry continues to grow, we can expect them to see a rise in business and IP litigation involving marijuana businesses in the coming months and years.  

Back in June, electric car manufacturer Tesla Motor’s CEO Elon Musk “opened up” Tesla’s patents to other car manufacturers. Now that the dust has settled, was this really the game-changing move that analysts and news outlets had predicted? And how will it affect Tesla’s recently unveiled Model D?

What Tesla’s Announcement Really Means

To explore the real reason behind Musk’s seemingly bold decision, we need to examine what the phrase “opened up” actually means in this context. Musk has stated in a blog post on Tesla’s website that he will not pursue litigation against anyone who wants to use the technology disclosed in Tesla patents in “good faith.” See “All Our Patent Are Belong to You.” There is nothing in this promise, however, that is legally binding.

Patents, by design, are already “open” to the public. The United States Patent and Trademark Office publishes patent applications and granted patents. Companies can, and do, review all of the technology disclosed in a patent. So there are no secrets to “open up” or to “give away.”

Moreover, Musk’s “good faith” requirement creates a legal loophole, giving Tesla full discretion to determine whether another manufacturer is indeed using Tesla’s technology in good faith.  The promise appears to boil down to a PR move that gives Musk the ability to enforce Tesla’s IP rights without breaking his promise to the public, while maintaining the company’s status as a benevolent innovator.

Why?

The electric vehicle industry is in its infancy— without any direct competitors manufacturing electric cars, Tesla’s main concern is ensuring that market for electric vehicles continues to grow so it can stay in business.  By encouraging other car companies to utilize its technology, Tesla is positioning itself to become the industry standard for the manufacture and support of electric vehicles. This becomes particularly apparent when taking into account Tesla’s massive battery manufacturing operation.

It also doesn’t hurt that this PR move paints Tesla as a company that strives to make the world a better place through innovation.

How Will This Affect the Model D?

Although it is unlikely that Musk’s patent decision will result in competing manufacturers producing Model D copycats, it could have an indirect impact on future sales. If car companies set aside their reservations and take Musk’s promise seriously, they may begin to produce more electric vehicles and the accompanying infrastructure, possibly leading to an increase in the electric car market. A more robust market may make the idea of purchasing automobiles like the Model D more palatable to consumers.

Will Others Follow Suit?

Could a company like Apple, who is notorious for its IP protection and enforcement strategies, take a page out of Tesla’s public relations book? Unlikely. The mobile and tablet industries face steep competition, and patents are a well-established tool to keep competitors at bay.

Want to be the first to know if Musk breaks his promise? Use Docket Alarm’s Federal Court Case Alert Tool to create an email alert for all new patent cases involving Tesla.

A major challenge facing firms and in-house legal departments is staying abreast of new lawsuits relevant to their clients and respective practice areas. Most firms employ paralegals to constantly check the court docket, while others have created their own platform by piecing together various services and tools.  Not enough  are taking advantage of readily available solutions.

Google Alerts: Information Overload

One such tool favored by many is Google’s “Alerts” feature, which allows an individual to enter a keyword or phrase as they would if conducting a search, and receive updates on that information. When new content is uploaded to the web containing the saved word or phrase, Google sends you an email alert with a link to the related content.

While this seems like an efficient way of tracking new litigation, it is hardly a realistic solution. Envision a scenario where you create a Google Alert for “Apple Patent Lawsuits” because you are interested in staying up to date on the company’s aggressive IP enforcement. Yes, you will receive any news related to new lawsuits involving Apple’s patents, but you miss many of the lower-profile lawsuits that Apple is involved with that do not receive press coverage.  Further, the information you receive will almost certainly be late because you will only find cases when a reporter decided to pick up a pen and write an article.  You will also receive alerts regarding any new content that contains that phrase. Your inbox will be stuffed with alerts for “Apple Patents” that will likely not even contain the information you need. 

While Google Alerts is far more useful than scouring individual legal blogs and news sources, it is by no means a simple or comprehensive solution.

Why Docket Alarm is Different 

Additionally, your email alert will contain a summary of the update, allowing you to immediately evaluate its relevance without having to click on the link and read through the document.

Follow this link to quickly see a comprehensive list of all new lawsuits involving Apple’s patents. Click on the “Get New Lawsuit Alerts!” button to receive an alert whenever a new patent case is filed involving Apple.