Mondelēz Canada recently sued* STONEY PATCH - which it claims “is a virtual knockoff of MCI’s original SOUR PATCH packaging” – for trademark infringement, but says it has not been able to determine who is behind the brand, as the defendants “do not have a website or provide any contact information online."
In the past six months, Mondelēz Canada has sent over a dozen demand letters to third-party sellers of STONEY PATCH asking that they identify their source. It has also communicated with state regulatory and law enforcement agencies, and hired an investigator who has contacted 45+ dispensaries to inquire about the source of the product.
While such efforts have thus far yielded no information about the defendants’ identity or location, Mondelēz Canada has identified two Instagram accounts and one email address associated with the defendants, noted US District Judge Cormac J. Carney, who explained in an August 19 court order that “Facebook and Google do not provide user information without a subpoena and court order.”
Given Mondelēz Canada appeared to have a plausible case, and had made every attempt to identify those behind STONEY PATCH, “The need for expedited discovery outweighs any prejudice on Facebook and Google,” he argued.
"Plaintiff’s ex parte application to expedite discovery is granted."
'Blatant misappropriation of intellectial property'
In its lawsuit vs STONEY PATCH, Mondelēz Canada claimed that there was “a growing trend among makers of cannabis products, including edible products infused with tetrahydrocannabinol (THC), to market their products by copying and misappropriating the colors, flavors, names and packaging of popular snacks and candies.”
California’s Medicinal and Adult-Use Cannabis Regulation and Safety Act expressly prohibits the use of packaging and labeling designed to appeal to children or which could be easily confused with commercially sold candy or foods that do not contain cannabis, noted the complaint.
Kevin Bell, a principal at law firm Porzio, Bromberg & Newman, told FoodNavigator-USA that this was a case of a “blatant misappropriation of intellectual property... STONEY PATCH went the whole nine yards to knock off Mondeléz's branded products. My guess is whoever did the artwork had a bag of Sour Patch Kids right in front of them.”
He added: "The children's toy and arts and crafts industries are notorious for these types of IP issues. It has been prevalent in the conventional food and beverage industry as well. We are now seeing an increase in sports nutrition markets as brand awareness and the use of branded ingredients becomes more critical to a company's continued success."
*The case is Mondeléz Canada Inc (MCI) v Stoney Patch and DOES 1-10, 2:19-cv-06245 filed July 19 in the US district court, central district of California, western division.