IP cases in the cannabis industry are lighting up court dockets more and more. In a new case with potential for serious baggage, Kinzie Advanced Polymers, LLC (“Kinzie”) filed a federal lawsuit against a group of Oklahoma-based entities and individuals (collectively, “Defendants”) behind the KURE BAGS brand of cannabis storage bags. Kinzie Advanced Polymers, LLC v. Jeremy Carrasco, et al, Case No. 5:25-cv-00576-PRW (W.D. Okla.). The complaint alleges a range of intellectual property violations, including trademark and trade dress infringement. Kinzie alleges that the Defendants launched a competing product line that closely mimics its trademarks and branding.
Trademark Infringement
Kinzie owns several federal trademark registrations for its TERPLOC mark for, among other things, bags for storing cannabis and hemp products. Kinzie alleges that Defendants’ use of the TERPSAVR mark for identical goods infringes its registered mark.
TERP is likely a reference to “terpenes,” which are essential oils responsible for certain aromas associated with particular strains of cannabis. LOC and SAVR may be understood as intentional misspellings of “lock” and “saver,” respectively. So, each mark may convey that the bags are meant for securing the terpenes of cannabis within the bags. But what scope of protection should they each be afforded? Do the differences in sight and sound between LOC and SAVR outweigh the use of the identical term TERP? These, among others, are the questions the Court must answer to determine whether a likelihood of confusion exists.
Friends of the blog might recall that trademarks used on goods that are primarily used in connection with federally illegal substances, such as marijuana, are banned from federal trademark protection. This is something we’ve routinely discussed. See e.g., Blunders That Made ‘Bakked’ Cannabis TM Go Up In Smoke. If Kinzie’s goods are used for storing cannabis, does that mean its registrations may be challenged on this ground?
Trade Dress Infringement
Trade dress protection applies to non-functional aspects of the packaging or design of goods.
Kinzie alleges that the bright green accents, bold numerals, icons that signal freshness, mold prevention, and terpene retention that appear on its bags constitute protectable trade dress. Further, it alleges that Defendants’ bags feature similar elements such that consumers may be confused as to the source of each of the parties’ goods. Photos of the bags appear below (Kinzie’s bag on the left and Defendants’ bag on the right):
Is the black and green color scheme, circles with indicators of freshness, mold prevention, and terpene retention, and a clear portion of the bag to show the goods indicative of source? If so, is the design of Defendants’ bags close enough to cause confusion among consumers? Kinzie must persuade the Court that the answer to these questions is yes in order to succeed.
Where Do We Go From Here?
It’s not possible to predict with certainty how this case may play out. But we have some insights from prior cases.
Parties named as defendants in litigation involving cannabis companies have often sought to dismiss such actions based on the illegality doctrine: courts cannot be used to engage in unlawful conduct. But previous attempts to dismiss cases based on the illegality doctrine have failed. See e.g., California Ruling May Sow Seeds of Cannabis Patent Precedent. Accordingly, an attempt by Defendants to dismiss this case on that ground may not succeed.
Kinzie seeks several forms of relief, including profit disgorgement, which requires a party that profits from its own illegal acts against an opposing party to give up profits made as a result of such acts.
If Defendants’ goods are found to primarily be used for the storage of an illegal substance, i.e., marijuana, that would make them illegal under federal law. Can you require a party in a trademark infringement case to disgorge profits made from its federally illegal activities? At least one court says so. See A RAW Deal – Court Opens the Door for Profit Disgorgement in Cannabis Trademark Case.
This case is more than a packaging dispute—it’s a signal to the cannabis industry that IP enforcement is heating up. As cannabis brands mature, so does their need to protect their look, feel, and reputation. And as this case shows, even a “new bag” can come with some serious legal baggage.
