Trademark infringement suits keep coming in the cannabis space, fueled by people who may know their weed but know nothing about the laws regarding copyright — or worse, do know but take the approach “who’s gonna’ know?” or “it’s done all the time on the Interwebz.”
For movie and television performer Sacha Baron Cohen, known best for his Borat persona, what Solar Therapeutics recently tried to pull off is, as Borat would say, “It’s NOT nice!” This small cannabis dispensary opted to have a large billboard off a Massachusetts interstate highway show an unauthorized photo of the Borat character in his famous two-thumbs-up pose, with the caption “It’s Nice” and a reference to which exit to take toward their business. (We obviously covered his face in the billboard photo above)
So strike one was the inane gamble that no one west of the Mississippi would find out. Strike two was not knowing that Baron Cohen has deliberately never endorsed a product because he believes it would undermine his credibility as an activist who uses his movie and TV platforms to skewer hypocrisy and bad behavior. (Court documents mention he once turned down $4 million to appear in a car commercial.)
Moreover, strike three was not knowing that as an Orthodox Jew, Baron Cohen has never used cannabis and never would. According to one of his attorneys, “he never would participate in an advertising campaign for cannabis, for any amount of money.” And of course, his “Ali G” character from television seemingly made fun of the stoner lifestyle. (Editor’s note: there is currently an active debate within the Orthodox Jewish community whether or not cannabis is permitted under Jewish law, whether it is considered kosher, and whether the rabbinic interpretation differs between medical and recreational use.)
While the billboard itself was taken down once Solar received a cease-and-desist letter from Baron Cohen’s attorneys, the company’s legal troubles are just beginning. According to the litigation, Baron Cohen is seeking trebled statutory damages (based on the infringement being deliberate, not accidental), actual and punitive damages, plus disgorgement of profits attributable to the billboard — estimated to be at least $9 million total. When you stop to consider what Solar Therapeutics may have to pay, it’s clear that if they had chosen a legal approach, that amount could have easily accommodated virtually any other A-list celebrity — if not a couple of them. With the explosion of celebrity brands in the cannabis space (and our next article will have more to say about that), small companies may believe a tie-in with a big name is vital to getting their brand noticed. But whether it’s a recognized star, a local celebrity, or a social media personality or influencer, it goes without saying that celebrities have legal say over using either their likeness or the characters they portray, and ignoring this fact will always prove to be an incredibly costly mistake.