Edible marijuana products in commercial marijuana markets, or “edibles,” pose a new challenge to our existing regulatory infrastructure. Marijuana has acquired increasing social and legal acceptance as a form of treatment for a variety of serious illnesses; as such, some states have been challenged to balance the availability and affordability of these treatments with the risk they pose in terms of consumer confusion. Edibles that take the shape of traditional retail candies offer the greatest risk of consumer confusion, especially to children. Consequently, this Article proposes that courts—or, alternately, legislators—should interpret and apply the Lanham Act in a way that enables and encourages retail candy manufacturers to claim and protect the trade dress of their candy’s aesthetic designs. The risk of consumer confusion posed by state development of the marijuana market could thus be mitigated by private enforcement of trade dress protection via infringement actions brought by major candy retailers.
Andrew H. Fuller,
11 Wash. J. L. Tech. & Arts
Available at: https://digitalcommons.law.uw.edu/wjlta/vol11/iss5/5