18 August 2022TrademarksStaff Writer

Mars scores cannabis TM victory in Canada

THC edibles were sold in packaging that resembled well-known sweets | Three retailers face damages bill of nearly CA$50k | Judge placed significant weight on potential harm to children.

Mars Canada has secured a win against several online cannabis retailers in Canada that allegedly offered THC-infused edibles in packaging that closely resembles the Skittles brand.

The Federal Court of Canada in a decision, published Monday, August 15, provided injunctive relief against three retailers that infringed the Skittles trademarks and trade dress.

Judge Patrick Gleeson, on behalf of the court, said: “I have placed significant weight on the issue of harm not only to the plaintiff but also to members of the public who might accidentally consume the defendants’ infringing product believing it to be a genuine Skittles product.

“The fact that Skittles are a confectionary product that are attractive to children reinforces the need to denounce the defendants’ conduct.”

A spokesperson for Mars told WIPR: "We filed these suits in 2021 because we strongly condemn the use of popular candy brands in the marketing and sale of THC products, which violates the Canadian Cannabis Act and is illegal in Canada.

"We were deeply disturbed to see our trademarked brands being used in unauthorised and inappropriate ways to illegally sell THC-infused products and we feel strongly about protecting consumers from mistakenly ingesting these unlawful THC products."

Child hospitalised

Mars registered its first Skittles-related trademark in Canada in 1976. In February 2021, Mars learnt that stores and online companies in Canada were selling THC-infused confectionary products in association with the Skittles trademarks and in lookalike packaging.

According to Mars, in February 2021, a child who mistakenly consumed the infringing product was hospitalised.

Gleeson said that the advertising and offering for sale of a potentially dangerous product using appropriated trademarks that are “evidently and obviously attractive to children represents a marked departure from ordinary standards of decent behaviour that deserves to be denounced and deterred”.

Each of the three defendants was ordered to pay CA$30,000 ($24,809) in punitive damages which Gleeson said would "promote deterrence and denounce the defendants’ unacceptable conduct”. The defendants were also ordered to pay CA$15,000 in damages and CA$3,200 in costs.

While Mars Canada secured default judgment against three retailers, the court dismissed its motion against two other retailers.

Mars acknowledged that there was insufficient evidence in the motion record to support default judgment against one defendant, and the court concluded that there was not enough evidence to confirm that the other defendant had been served or given notice of the claim.

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