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Gene Markin is a Shareholder in Stark & Stark’s Complex Commercial, Intellectual Property, and Cannabis Litigation Groups where he concentrates his practice on complex litigation matters involving copyright protection and infringement, trademark and trade dress infringement and enforcement, trade secret litigation, false advertising, domain name disputes, unfair competition, class actions, fraud and consumer fraud, shareholder and partner disputes, breach of contract, cannabis business disputes, cannabis intellectual property matters, cannabis insurance coverage claims, cannabis regulatory compliance, RICO actions, and state licensing agency appeals .

If you have any questions, please contact Gene Markin, Esq. at (609) 895-7248 or

Even though the Food and Drug Administration (“FDA”) has come out against the sale of CBD-infused foods and dietary supplements, a cursory search for “CBD” on Amazon reveals a plethora of hemp extract and hemp oil products, including gummies, tinctures, creams, and capsules. Because of the FDA’s prohibition on the sale of CBD-infused foods and beverages and the recent shift in federal law to legalize hemp and hemp products, manufacturers and marketers alike have latched on to the buzzwords “hemp” and “hemp extract” to sell CBD products. But, from a consumer’s perspective, what is the difference between a 1000mg, 50,000mg, and a 400,000mg product? Most likely, not a whole lot.

Continue Reading The Labeling Paradox: Navigating Between Hemp, Hemp Extract, and CBD Products

Trademarks serve as source indicators for distinguishing the goods sold by different manufacturers. Trade dress, a “symbol” or “device” by which the goods of a manufacturer may be distinguished from the goods of others, is registrable as a trademark if its function is to identify the source of the goods. Trade dress may be the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.

Continue Reading Color Combination and Design on Product Packaging Can Function as a a Trademark Federal Circuit Says

In cases of trademark infringement, it has long been debated whether infringers should be required to disgorge profits if they unknowingly violated intellectual property laws.

For decades, there was a wide variance on whether a trademark owner would be able to recover profits in litigation. While the Lanham Act (1946), the guiding trademark legislation, states that profits could be awarded “subject to the principles of equity,” there has not been consensus on how that should be applied. One particular sticking point?

Willfulness, or the voluntary, intentional violation of a known legal duty.

But last week, the Supreme Court provided much-needed clarity on this topic for courts, attorneys, and business owners when it ruled in favor of Romag Fasteners against Fossil Inc. The U.S. Supreme Court handed down a ruling on trademark infringement, stating that infringers can, in fact, be made to hand over profits to a brand owner even when the infringers have not willfully violated the law.

Continue Reading Where There Is No Will, There Is A Way: Willfulness Not A Requirement for Lanham Act Disgorgement of Profit Damages


While the issue of what color a trash bag handle is may not be the first topic you would expect to raise ire in the trademark industry, the world is an unpredictable place. Recently, Poly-America and API, two major manufacturers of trash bags in the United States, went up against each other over their competing trade dresses of colored trash bag drawstrings – Poly-America uses an orange drawstring, and API uses a gray colored drawstring.

Continue Reading TTAB Determines Color Drawstrings of Trash Bags Not to be Trademarks Due to Genericness and Functionality

While studies show that each individual sees color differently, the Trademark Trial and Appeal Board (TTAB) determined that as used on medical gloves, a shade of light green is not confusingly similar to a shade of dark green. In a black-and-white decision, the TTAB reversed a Trademark Examining Attorney’s refusal to register the color green identified as Pantone 2274C as used on medical gloves in light of an existing registration for the color green identified as Pantone 7488U used on the same line of goods.

The Gloves Are Greener on the Other Side

In November of 2019, Medline Industries, a leading manufacturer of medical gloves, submitted a request to register the color of their green gloves, Pantone 2274C, on the United States Patent and Trademark Office’s Supplemental Register. This is the list for trademarks that are not yet eligible to be listed on the Principal Register, but may be one day. The Trademark Examining Attorney, however, rejected Medline Industries’ application. The rejection was based on Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), which restricts granting trademarks based on the probability of confusion with another mark.

Continue Reading Shades of Green: TTAB Allows Registration of Color Mark

In November of 1971, Led Zeppelin released its iconic song, “Stairway to Heaven.” Since it made its debut, there have been lots of claims about the song: it has been played on the radio 2.8 million times; it is one of the greatest songs of all time; if you play it backward, you will hear a hidden Satanic message; and, perhaps most interestingly, that the famous intro was plagiarized.

Plagiarism claims and a history of litigation

The plagiarism claim linked the intro’s origins to a lesser-known 70s rock band, Taurus, and their song, “Spirit.” Michael Skidmore, a trustee for the estate of Randy California, the guitarist for and composer of Taurus, brought a lawsuit in 2014 alleging that Zeppelin stole the guitar intro for “Stairway” from Spirit. The lawsuit alleges that the two bands toured together in the late 1960s, and therefore, Zeppelin had “access” to Spirit’s songs.

Continue Reading Sometimes Words Have Two Meanings: Court Rules Stairway to Heaven’s Troubled Copyright History

A recent New Jersey federal court decision denying Strike 3 the right to expedited discovery highlights a recent departure from the status quo of allowing Strike 3 to subpoena Internet Service Providers (“ISP”) such as Comcast, Verizon, and Optimum, in order to discover the identity of the individual subscriber of a certain Internet Protocol (“IP”) address that Strike 3 alleges was used to illegally download its copyrighted adult movies using the file sharing platform BitTorrent. This is good news for those who find themselves caught in the well-oiled litigation machine created by Strike 3 and Malibu Media.

Continue Reading New Jersey Federal Court Shuts Door on Strike 3 Litigation

In a case of first impression, the New Jersey Appellate Division held in January 2020 that an employee’s costs to use medical marijuana to treat chronic pain resulting from a work place injury is reimbursable by his employer.

This case arose out of a construction accident in 2001. Vincent Hager was working on a construction site when a truck delivering concrete dumped its load on him. Following the accident, Hager immediately experienced lower back pain that radiated down both legs, which he described as a “shooting and stabbing pain.” Initially, Hager’s employer, M&K, denied Hager’s workers’ compensation claim. While the claim was pending, Hager began to treat his injuries/pain with marijuana, as made available by New Jersey’s Compassionate Use Medical Marijuana Act (MMA), and sued M&K for reimbursement.

Continue Reading Employee’s Cost of Medical Marijuana to Treat Work Place Injury Reimbursable by Employer

New Jersey is now among the first three states to have its Hemp Program approved by the United States Department of Agriculture (the “USDA”). The 2018 Farm Bill legalized industrial hemp production nationwide by removing hemp and its derivatives, such as CBD, from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp.

Continue Reading Growing, Processing, and Handling Hemp Now Legal in New Jersey – Apply Today

In June 2019, the Legislature passed the New Jersey Hemp Farming Act (the “HFA”). This is great news for the “Garden State.” New Jersey has hundreds of thousands of acres in farmland and hemp cultivation may prove to be a lucrative business.

Previously, hemp cultivation in New Jersey was limited to non-germinating seeds and stalks