Mars sues retailers of infused skittles

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In its war against cannabis retailers selling copycat, drug-infused versions of rainbow-themed Skittles, the king of candy has won a lawsuit against online cannabis retailers in Canada.

Mars, the world’s largest candy company, hired private detectives in Canada to go undercover and try to buy products that look like their copyright packaging but really contain cannabis edibles.

A Federal Court judge said that even though ownership of the online stores was murky, the cannabis edibles were clear trademark rip-offs and hurt the popular candy’s reputation.

“The fact that Skittles are a confectionary product that are attractive to children reinforces the need to denounce the defendants’ conduct,” said Judge Patrick Gleeson in a ruling published Monday.

There have been alarming news stories of children mistakenly eating cannabis edibles that look like well-known candy brands but contain THC, a psychoactive ingredient.

Many cannabis edibles are packaged to look like other popular candy and snacks, sometimes in comedic parody and sometimes using identical names and similar packaging.

Last year, for instance, a man near Belleville, Ont., was charged with criminal negligence causing bodily harm after his three-year-old daughter devoured a bag of cannabis edibles that mirrored Skittles packaging except for small marijuana leaves and the word “medicated” on the wrapper, Ontario Provincial Police said at the time.

In November, Toronto police issued a public warning over cannabis confections after officers raided an unlicensed cannabis dispensary.

Other cases have been reported south of the border.

A fourth-grade student in Sacramento, Calif., shared cannabis candies that looked like Skittles with classmates at recess in May, the Twin Rivers Unified School District said.

Mars Canada Inc., a subsidiary of Mars Inc., went after five proprietors the company says are Canadian based and marketed or sold cannabis products that violate Mars trademarks — and Canada’s cannabis laws.

The company claims in documents filed in court that the unauthorized products are often real Skittles sprayed or infused with THC and re-packaged for sale.

In May 2021, they issued a statement of claim against the unnamed owners of five specific website retailers.

For two, West Coast Supply and Shrooms Online, the companies told undercover investigators the products weren’t available, and none were bought, but investigators showed court screenshots suggesting the products were previously for sale.

Investigators found and ordered Skittles-like products from a third retailer, Sure Buds, but the order was not processed.

They did buy and receive some from Flash Buds, court heard. The results of a fifth company targeted, King Tut Cannabis, are not specified in the court judgment.

All of the companies were sued.

Establishing ownership of the sites and address of the owners proved difficult. Gleeson accepted this was because they “organized their online activities in a manner that protects their anonymity.”

Mars sought a default ruling against all but King Tut. A default judgment means proceeding with a hearing and decision by a judge without response from defendants.

Gleeson ruled he was satisfied West Coast Supply, Shrooms Online, and Flash Buds had received the claim and ignored it and deemed them in default. He said there was no evidence the claim was received by Sure Buds and so declined to deem them in default.

Gleeson found that packaging and logos on advertised cannabis products were “almost identical” to official Skittles packaging. He also found the cannabis products likely damaged the real product.

“The unlawful nature of the infringing product and the adverse publicity it has attracted has likely had a negative effect on the goodwill (of the Skittles brand), likely depreciating its value,” he said.

Gleeson ordered the three companies to turn over all infringing products and to each pay Mars $45,000 in damages and $3,200 in costs.

A company spokeswoman for Mars Canada said the candymaker values trust in its products.

“We were deeply disturbed to see our trademarked brands being used in unauthorized and inappropriate ways to illegally sell THC-infused products,” a spokeswoman said.

“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.”

Requests for comments by email to West Coast Supply, Shrooms Online, and Flash Buds were returned as undeliverable. A similar request to Sure Buds went unanswered prior to deadline.

West Coast Supply calls itself “Canada’s No.1 Weed Shop” with its website once registered in Washington state but now redirecting to a domain for an island in the Indian Ocean, although its registration is listed as British Columbia. The new domain was active Monday, but National Post could not find products similar to Skittles branding.

A functionally similar site registered in Iceland for Shrooms Online is no longer active. An archived version includes a marijuana product called Zkittlez and another called Scooby Snacks, a fictional treat in the kids cartoon Scooby-Doo.

Sure Buds was registered as a Canadian domain in 2018 and a Colombian domain in 2020. Only the Colombian site remains active. On Monday, THC-infused edibles using the Skittles name and similar packaging as legitimate candy were one of the top advertised items — available in five flavours. Products similarly based on other brands of candy were also available.

Flash Buds was registered as a Canadian domain in 2019 but was not active Monday.

King Tut remains an active site and on Monday prominently advertised a featured promotion for a Zkittlez THC drink mix, with imagery similar to Skittles.

National Post was told in an online chat with King Tut Cannabis the company would reply to questions as soon as they could. No reply arrived prior to deadline.

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