Orange Crush Trademark Infringement

A synthetic cannabis called Cush produced by “Sky Hi Blends” in Arizona is now sold at some delis and convenience stores in Buffalo, New York.  Buffalo city officials want it off the shelves.

The Dr. Pepper Snapple Group own Orange Crush and think it is trademark infringement. They demand that the name and logo is removed from the labels of the Cannabis product.

“Needless to say, we had nothing to do with this product. We did not authorize the marketing and sale of it. We’re angry that our trademark is being infringed and associated with a product like this and we’re pursuing all legal alternatives to get it off the streets,” said Chris Barnes, spokesman for Dr. Pepper Snapple Group.

Ryan Burgess of  YNN News reported this story and as a buffalo attorney  that practices IP law I appear in this video clip to provide general information regarding trademark infringement.

I was quoted as saying “The question is whether it’s going to confuse the public. Confusingly similar marks. It doesn’t have to be the exact same thing.

It could be a phonetic equivalent, something close. And if it’s close enough to confuse the public, then it’s going to be an infringement of the trademark”

I also found on line a product called Orange Krush. The product is advertised as a “a hybrid all natural bud smoke that grows wild in the peruvian jungles and several tropical islands.”

I wonder what the Dr. Pepper Snapple Group thinks about the label on Orange Krush buds? Do you think the drops of orange liquid around the letters are “confusingly similar” to the Orange Crush trademark? Does changing the “C” to a “K” make a difference when infringement questions are raised?

An interesting side note to this story:

I performed a search on the United States Patent and Trademark Office search page I noticed that the trademarks registrations for Orange Crush are listed as DEAD. They have one pending application 85218189 for registration that is live. The registration 3721289 that is live is owned by Starbuzz Tobacco, Inc for tobacco products.

I am curious as to why they did not maintain their trademarks in Orange Crush. And I wonder how hard Sky Hi Blends is willing to push on fact that the registrations expired. If registrations expire there still are common law rights but the benefits of registration are lost.

Here are some of the benefits of owning a federal trademark registration on the Principal Register registration:

• Public notice of your claim of ownership of the mark;
• A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
• The ability to bring an action concerning the mark in federal court;
• The use of the U.S. registration as a basis to obtain registration in foreign countries;
• The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
• The right to use the federal registration symbol ®; and
• Listing in the United States Patent and Trademark Office’s online databases.