Both marijuana and hemp belong to the genus plant cannabis sativa and are slightly different “breeds” of the same “species.” While both marijuana and hemp plants contain more than 100 cannabinoids (distinct chemicals found in the cannabis plant), the discerning difference between the two is that marijuana typically has abundant levels of the psychoactive compound delta-9 THC (delta-9-tetrahydrocannabinol), whereas hemp contains high amounts of CBD (cannabidiol). Prior to 2019, both marijuana and hemp were lumped together as “marihuana/marijuana” and classified as a federally prohibited Schedule 1 drug under the Controlled Substances Act (“CSA”).
The Limits of Artistic Expression: A Look Behind How MetaBirkin NFTs Infringed on Hermès’ Famous Trademark and Handbag Trade Dress
In early 2023, a federal jury found an opportunistic meta-artist infringed on a luxury fashion house’s iconic handbag trademark. Digital artist Mason Rothschild created 100 unique “MetaBirkin” non-fungible tokens (“NFTs”) depicting luxury brand Hermès International’s renowned Birkin bags covered in faux fur in a range of contemporary color and graphic representations. Rothschild sold the NFTs for $450 each and received re-sale commissions in the tens of thousands of dollars. Describing the project as an “experiment” in artistic expression and conceptual art, Rothschild likened the MetaBirkins to Andy Warhol’s famous Campbell’s soup can pop art. Proclaiming the MetaBirkins are artistic commentary on a status symbol of the rich, i.e. exclusive Birkin bags, Rothschild sought cover under the First Amendment to protect him from Hermès’ claim of infringement.
Interstate Cannabis Commerce on the Horizon Thanks to California
Despite the proliferation of in-state cannabis businesses and commerce, the sale and transportation of marijuana between and among states, even states with legal cannabis frameworks, remains federally prohibited due to the classification of marijuana as a Schedule 1 drug under the Controlled Substances Act. This has led to some of the oversupply and price decrease challenges businesses have been grappling with in Oregon, California, and Colorado as well as has, in some ways, supported the illicit market as over-taxed and over-regulated licensed businesses struggle to turn a profit.
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Proprietary Ink: How One Tattoo Artist Took Take-Two to the Mat Over Unauthorized Use of Replica Tattoos on Wrestlers in WWE 2K Games
Tattoo artist Catherine Alexander (“Alexander”) filed a lawsuit against World Wrestling Entertainment Inc. (“WWE”) and video game maker Take-Two Interactive Software Inc. (“Take-Two”) claiming they violated her intellectual property rights by reproducing her tattoo designs on the digital avatar of wrestling star Randy Orton in a series of released WWE 2K wrestling video games. See Alexander v. Take-Two Interactive Software, Inc., 489 F. Supp. 3d 812 (S.D. Ill. 2020). The lawsuit concerns five designs for which Alexander obtained copyright registrations prior to filing suit.
Road to Safe Harbor: Implementation of Repeat Infringer Policy Necessary for DMCA Safe Harbor Protection from Copyright Infringement Liability
In the cloud-based age where numerous tech giants such as Google, Amazon, and Apple have launched cloud music services, many kept abreast of ongoing legal battles over online service providers’ liability for users’ music copyright infringement offenses using their platforms and what internet service providers must do to avoid contributory infringement liability. Case in point – MP3tunes. Michael Robertson, the founder of MP3tunes LLC, operated two websites: MP3tunes.com (“MP3tunes”) and Sideload.com (“Sideload”). MP3tunes enabled users to store music on a cloud-based server and Sideload enabled users to search for free music online and directly upload the songs to MP3tunes’ digital storage lockers. The songs stored on MP3tunes were then added to Sideload’s index of searchable songs, which were made available to other users. Due to infringed material, various record label publishing houses (EMI Music Group and fourteen other record companies, collectively, “EMI”) sued Robertson and his website MP3tunes for copyright infringement. See Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627 (S.D.N.Y. 2011).
The Fight for Red: Fashion Statement or Protected Trademark?
Louboutin v. YSL
Christian Louboutin (“Louboutin”), the designer of the famous red bottom shoes, filed a trademark infringement lawsuit against fashion house Yves Saint Laurent (YSL) claiming YSL infringed on its red sole trademark (the “Red Sole Mark”) by selling a monochrome dress shoe that was entirely red, including a red insole, heel, upper, and outsole. YSL counterclaimed seeking to invalidate Louboutin’s Red Sole Mark arguing it was ornamental and not distinctive and purely functional.
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High Stakes: What to do Now That Your New Jersey Cannabis Business Application Has Been Approved by the CRC
If your conditional, conversion, microbusiness, or annual application has been approved by the Cannabis Regulatory Commission, congratulations! You have cleared the first major hurdle in obtaining a cannabis license in New Jersey. As advisors and legal counsel to a handful of successful applicants who have obtained conditional and annual approvals in each available class of licenses, Stark & Stark is keenly aware of the challenges facing prospective operators and industry entrants.
Franchisor Beware: Registered Trademarks Does Not Mean Impunity from Priority Local Use Challenge
Federal trademark registration is the Holy Grail for companies, especially franchises, looking to expand their footprint and access a national audience. But even though trademark registration confers on owners certain exclusive rights and benefits, such as constructive national notice of use, protects against registration of confusingly similar marks, provides notice of ownership, and enables recovery of statutory and exemplary damages in appropriate cases, it does not extinguish the rights of an owner of a substantially similar mark who has used the mark in commerce prior to registration. This can be especially problematic for growing franchises that have built their business on a recognizable name and charge significant fees for franchisees to use that name in running a local franchise location.
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The Trademark Blues: TTAB Proceedings Do Not Preclude Subsequent Infringement Lawsuits
Beasley. v. Howard is a tale of two musicians fighting over the rights to their band name. 14 F.4th 226 (3d Cir. 2021). In 1969, David Beasley (“Beasley”) founded the Camden, New Jersey-based band “The Ebonys.” Throughout the 1970s, the Ebonys achieved some commercial success and have continued to perform through the decades. In the mid-1990s, William Howard (“Howard”) joined the band, and, in 1997, Beasley obtained a New Jersey state service mark registration for THE EBONYS. After several years of performing together as The Ebonys, Beasley and Howard parted ways, and in 2012, Howard applied for and obtained a federal trademark registration for THE EBONYS. Afterward, Beasley claimed that Howard used the registered trademark to interfere with Beasley’s band and business by preventing him from registering a website domain name containing the words “the Ebonys,” convincing concert venues not to book Beasley, attempting to collect royalties from Beasley’s music, and claiming to be the true founder of The Ebonys.
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Metes & Bounds: What Are the Typical Zoning Conditions and Restrictions Enacted by Municipalities Allowing Cannabis Operations in Their Towns?
As towns and municipalities scrambled to meet the August 22nd deadline to regulate or prohibit marijuana establishments within their borders, a few noticeable trends emerged. As expected, many townships, including Freehold, Morristown, Franklin Lakes, Cherry Hill, Asbury Park, Haddonfield, and Ocean City, prohibited any and all marijuana businesses and operations outright. Others such as Newark, Egg Harbor Township, Hackensack, Fort Lee, Saddle Brook, Cinnaminson, Mount Holly, Collingswood, Bridgeton, Bloomfield, Woodbury, Jersey City, Lambertville, New Brunswick, Red Bank, Rockaway, Rahway, Elizabeth, and Hackettstown have opted to allow marijuana businesses.
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