This week a Chicago vape firm was taken to court over its branding.
Chewing gum makers Wrigleys have filed a lawsuit against Chi Town Vapers alleging their bright yellow Joosy Fruit Gum and a spearmint green Dbl Mint E-Liquid, look very much like the packaging for Wrigley’s Juicy Fruit and Doublemint Mint chewing gums.
‘Rather than develop their own brand names for their products, defendants have chosen to market their e-liquid for electronic cigarettes using the trademarks of various other well-known companies, including Wrigley’s brand names, without authorization or license’, Wrigleys have said.
Wrigleys also described the use of such popular brands in the marketing of e-cigarettes as ‘grossly deceptive and irresponsible’.
And those other brands cited in the lawsuit include Skittles, Hawaiian Punch, Mountain New, Red Bill and Nutella.
But why does copycat branding feel so prevalent in the vaping industry?
The flavour combination potentials for eliquid are infinite, but vaping is young and only recently regulated, allowing literally anyone to mix and sell. And what’s the best way to make quick sales in this ever competitive environment?
… recreate an eliquid flavour that’s already popular as a brand in its own right.
It’s less risky. Most people, especially those new to vaping, would be drawn to ‘Black Jack’ over ‘Sweet Aniseed Explosion’ or whatever quirky name the mixologist could create, even if it were exactly the same product. After all, that’s branding.
Quirky packaging has been used as a means to stand out from the crowd and some have, allegedly, come about as close to copyright infringement as you can get. Likely every vaper can remember some branding or packaging that imitated a household name.
Then the industry got regulated. And the law said you must keep to the facts and use compliant packaging.
And in modern times, where vaping gets a bigger slice of column inches every day, you can also end up with lawsuits like the Wrigleys one.
But Wrigley’s Wasn’t the First…
In April 2016 DJ Deadmau5 took West Coast Vapes Supply to court over the eliquid company’s use of a logo and brand name Deadmodz that was allegedly very similar to the DJ’s logo. The lawsuit claimed that consumers were confused and thought he was behind the line of ecigarettes. The deadmodz website is no longer available.
And Wrigleys also didn’t want to be associated with a vape/tobacco product: ‘We strongly condemn these actions, which are directly at odds with our anti-tobacco policy and our strict marketing standards,’ a spokesman said.
But it’s not just packaging where copyright infringements have ben claimed.
The Vape Company vs the Manufacturer
In April this year US based Alien Vape filed a lawsuit against Chinese manufacturer SMOK for trademark infringement and breach of contract. Ten retailers and YouTube vape reviewer Rip Tripper, were also named as defendants.
And according to the vape company’s lawyers McArthur Law firm, ‘Alien Vape alleges infringement of its registered trademarks in its distinctive “Alien Vape” name, which the Defendants are infringing by manufacturing and selling products under the names “Alien Kit” and “Baby Alien”.
‘SMOK has already agreed that the Alien Kit is infringing Alien Vape’s trademarks and signed a settlement agreement in October 2016 contracting itself not to release any more Alien branded products and additionally to pay Alien Vape $15,000 per month for SMOK’s use of its the term “Alien” on its Alien Kit.
‘However, SMOK has flagrantly ignored and breached its contract with Alien Vape by failing to pay it the monthly licensing fee and continuing to release new Alien branded products.’
But Are Vape Branding Disputes More Prevalent than Other Branding Disputes?
In the US copyright infringement suits fell by 22% in the financial year 2016.
And with vaping there are at least a couple of things to consider. Firstly vaping is becoming more regulated, with ever more restrictions being placed on packaging of tobacco-related products – with a deliberate attempt by legislators to halt the type of packaging that is considered less responsible.
Also as the anti-smoking, and in some cases anti-vaping, feeling increases many household brands will want to disassociate themselves from the tobacco and related products industry. Therefore any perceived imitation is likely to be met with opposition.
According to the Chicago Tribune ‘Wrigley attorneys first reached out to Chi-Town Vapers in July 2014, asking the company to stop selling products that at the time were being marketed as Juicy Fruit, Doublemint and Skittles, which is also a Wrigley brand.
‘Chi-Town Vapers did not respond to that letter but removed images of the infringing products from the website.
‘By November 2015, Chi-Town Vapers was marketing the similarly branded Dbl Mint vape liquid, with Joosy Fruit Gum relaunched in January.’
The Doublemint packaging dates back to 1905, while Juicy Fruit dates back 1914.