Trademarking Your CPG Brand – A Conversation with Abe Cohn

This is CPG Insiders, the podcast that helps consumer packaged goods companies survive and thrive in business. Now your hosts, Mark Young and Rob Taylor. Welcome, everybody, to another edition of CPG Insiders. I'm your host, Mark Young, with my co host and partner in crime next to me, Rob Taylor.

Hello, everybody.

So, Rob, we're gonna get into some. We're gonna right into some interesting stuff today. We're going to talk about trademarks. We're going to talk a little bit about cbd. And with us today is Abe Cohen. Now, Abe is an attorney. We're not going to hold this against him because we need lawyers in this business sometimes. So, Abe, welcome to CPG Insiders. And you're with a company called Cohen Legal Group, right?

Correct. Yes. Thank you so much for having me. It's a pleasure to speak to you guys and to connect with your audience. This is really important stuff and I'm happy to talk about it.

So I'm going to start off with a recent client here at our agency. So a client came to us, startup company, great people, new business, nice product. They have a product where the first name of their product is named after the country of origin and the second name of their company is the name of the product, the common name for the product. They've been told that they have a trademark problem because that you can't just say, I'm Seattle wood. Could I cut down trees in Seattle? What's the issue? Is that the case and what's going on there?

Yeah, absolutely. So the thing to understand about trademark law is that the value and strength of a trademark is a function of its distinctiveness. The more distinct the trademark, the more powerful of a trademark, the less distinctive a trademark, the less powerful, up to the point of this mark not being eligible for trademark protection at all. So if you think of trademarks existing along this, what's called a spectrum of distinctiveness, on the left hand side, you have marks that are arbitrary, fanciful, you know, marks that are just made up that didn't exist.

Like Kodak.

Like Kodak, precisely. A name that is entirely subjective to the experience of this brand. And it was chosen as a very unique way to kind of label and create a brand identity. And then of course, on the other side of the spectrum, you have generic marks, marks that just quite literally describe the goods that are being sold by those companies. And then in the middle, somewhere along the spectrum, you have marks that are descriptive. They describe what the good is. And then you have suggestive marks, marks that just kind of pique your Imagination about what the good is that might be sold under that brand name. So depending on where you are in the spectrum, the mark has greater or less protections. In your example, what this company is doing is they are selling chocolate, and then they are naming the company, at least, if not the chocolate bar, the name of the country and chocolate, so, you know, the consumer knows immediately what it is that's being sold. So there's nothing unique or distinct about that mark. It's just quite literally describing the goods sold and where the goods are being sourced from. And so that would not be a trademark that's eligible for, certainly, trademark registration in the United States Patent Trademark Office, and it likely wouldn't be available for any sort of trademark protection.

So can I ask Seattle's Best Coffee? They just get around that with the word best in the middle. I mean.

Yeah, so. And it gets, you know, the devil really here is in the details. So whenever you have the word best in a trademark, that's considered a laudatory mark. Laudatory marks are marks that profess to give some sort of value to the thing. The best, the top, the greatest. These marks also are problematic from a trademark point of view. You know, sometimes when marks are only descriptive, not generic, but, you know, they simply kind of describe what it is that's being sold. They can obtain trademark protection after enough time through this doctrine of secondary meaning or acquired distinctiveness. So a mark that would not otherwise obtain trademark protection in what's called the principal register, which is where all trademarks want to be, it might make it to what's called the secondary register. And then after enough time, if they obtain secondary meaning, then they elevate their status as a trademark, and then they get full trademark rates. So without knowing too much about Seattle's Coffee or the exact formulation of that market, it's possible that they're so ubiquitous now that they've assumed trademark rates where they would never have originally been able to get them.

Yeah, that's what I was going to ask. Is there case law or does trademarking, does case law guide that sort of thing? Because Seattle's Best is, I think, pretty ubiquitous now, at least throughout the Midwest. It is. Which I assume it is in Seattle, too. But it's so common by name by.

Starbucks, by the way.

I'm not surprised it tastes like Starbucks, for better or for worse. Pro tip to anybody out there drinking coffee and wanting to save a couple dollars. But I mean, it's such a common name, but it's, you know, it's three feet of shelf on at Kroger. So it. But it also seems like it has the same common language to the name problem.

Well, what about a name like, you know, Wonderful Pistachios?

Yeah, right. That would. I think that would very well be problematic because, you know, assuming that they're selling pistachios, that second half of the mark is generic. Right. You sell pistachios that has the word pistachio in it. And the first part of the mark, Wonderful is laudatory. You're just simply saying that we sell awesome pistachios, but there's nothing really distinct or unique about that name. So I would be skeptical as to whether or not that mark would gain immediate entry, if entry at all, into the trademark office. The key thing to understand about trademark law is what the trademark office cares about is this issue of consumer confusion. This is kind of the crux of trademark law. They want to make that a person who develops a brand and starts selling things that they have the right to continue to sell that thing, such that somebody else wouldn't be able to come along and develop a similar branding product and use a similar name. That obviously wouldn't be fair. Right. We don't want consumers to be confused when looking at a secondary trademark and thinking that perhaps it came from this original acting company so somebody could come.

Up with Seattle's worst coffee.

Again, enter Starbucks.

Yeah, you know, satirical trademarks are really interesting. Like, imagine that there was this company that came up with a play on words of, I think, like the Gucci mark or. But, you know, this is where trademark litigation really becomes interesting. And there's this legal doctrine of trademark dilution. If you use a name, if a pornographic film company called itself Prada, you know, certainly no one would think that the product company was behind this pornographic film, so there wouldn't be consumer confusion. And yet somehow the fact that there's porn being marketed under Prada might diminish and somehow tarnish the product brand name. And so that is the sort of trademark that wouldn't be allowed. So there's a lot of kind of interesting videos. And with trademark law now, what's the.

Difference between circle R, circle tm, circle C. Yeah.

Okay, so just to knock off the last one, circle C stands for copyright. And a copyright is a different type of intellectual property. It covers literary work, it covers music, motion pictures. It doesn't necessarily cover branding. Branding is reserved for trademarks. And as far as the difference between a circle R and a tm, you can only legally put a circle R on your brand name. If you have that trademark registered with the United States Patent Trademark Office, if you haven't have, if you have not had it registered with the uspto, you can simply put a TM next to the name.

And what protection would that TM give someone?

Really, not that much. You know, ideally, a person who would otherwise be tempted to steal your name will see it and be scared off. But a tm, that doesn't mean all that much a circle or is a much more potent form of protection because it actually indicates that this is a trademark registered with the United States Patent and Trademark Office.

Now, if I had a company name that I couldn't get trademarked or couldn't get registered, would I then put a TM on it just to get, to put some. How put people on notice that it's a company name?

That would be an interesting strategy. I mean, if you were, I think, okay, personally, if you were my client, you know, I would say if you're a company that's savvy enough to know that this is a trademark that you couldn't actually protect with trademarks, you know, pick another name. Don't, don't build an empty house with this tm.

So if I had this business called Seattle Coffee, if I all of a sudden called it Rob Taylor, Seattle Coffee or Seattle Coffee by Rob Taylor, does that all of a sudden now is it safe?

Well, okay. The first thing to understand is that you're playing. I always tell this to my clients with the Patent Trademark Office. You're playing a game of blackjack. It's not pure vetting. But unfortunately, and most people don't understand this about the Trademark office, when you submit an application, each trademark application is actually reviewed by a real person, a trademark examiner. And not every trademark examiner is going to have the same opinion about the eligibility of a mark. This is certainly true in issues of consumer confusion, with a likelihood of confusion problem where a trademark examiner will look at your trademark, one trademark examiner will think that another mark already exists that's too similar to yours, and another one might think it's not that similar. I'm going to let it pass. So all we're ever doing with these trademarks is we're making educated guesses and we're just saying, okay, we understand the basics and fundamentals of trademark law, let's apply it and, you know, let's roll the dice.

There's a very high level of this. There's a very high subjectiveness to how this happens.

Absolutely. This is a. I think this really is a big problem. With the trademark office, I mean, what you're doing is you're taking principles. This is, of course, what we do with all legal matters. You know, we look at the law, we look at the facts, and we try to fit in the facts of the law, and we say, okay, how similar is this to that? Or, you know, what can we learn from previous cases and how do we apply it to this? And with trademarks, this really is problematic because, like I said, two examiners could look at the exact same mark. One would say there is consumer confusion, one would say there isn't. And depending on who you get, either your mark's going to go through or it won't.

So what is the best way for somebody to pick the right name for their consumer packaged goods company?

So there are competing interests, and I think there is a right way from a business marketing perspective, and then there's a right way from a trademark law perspective. Right.

As an ad agency, we help people create names all the time, but we're not doing the legal side. We're coming up with names that. That we've done research on that we feel will. Will enhance the brand.

Exactly. So, you know, I have several ad agencies who have me on retainer just to clear trademarks before or to clear the prospective trademark the name before they're pitched to the client. So, you know, the client's not disappointed when they find out that the name that they select is actually not eligible. But, you know, from the ad agency's perspective, the intuition is to pick a name that most closely resembles the product. So a consumer would kind of readily understand what it is that's being sold. Something's pistachios. Right. That makes sense from a marketing perspective. However, from a trademark law perspective, it's not such a great idea because it's by its very nature not a strong trademark. What the trademark office wants to do is they want to award unique and distinct trademarks to companies. And if the company chooses a name that simply talks about or expresses the nature of the goods that they're selling, the trademark office says, well, that's not really fair. Why should you be the only one to be able to sell something? Pistachios. We want to make sure other companies have the chance to sell pistachios. And if we award you the exclusive right to a name plus pistachios and not give other people that opportunity, we're going to stifle business. So, you know, the trademark perspective on what's the best name does not, unfortunately, always comport with the branding Marketing experts idea of what the best name might be.

Is it up to one person on the trademark side, I mean, or is it presented to a board of, you know, two or three people reviewing whether or not something has a conflict?

Yeah, it's just one person. So you submit the application. And what's interesting, I know in the beginning we said, we're going to get into this cannabis, for example, and CBD marks. There are only a certain small number of attorneys of trademark examiners that work in the USPTO that cover cannabis and CBD trademarks. So certain areas of law that are more idiosyncratic, more specific, you know, to elevate the chances of consistent rulings across all the examiners will only be served by a select number of examiners. The food industry, I don't necessarily think triggers any one or several trademark examiner.

Do you ever. I'm guessing the answer is no. But do you ever have the opportunity to present in person, or is this just. You help create a package that is designed to convince them that there are no conflicts.

Right. So, unfortunately, this is something clients often are interested in doing. You can't make the case at the beginning of the application. Instead, what happens is that you submit the trademark application, and within three to five months, you'll hear back. Either the application will be approved or they'll submit what's called an office action. And the office action details either the substantive issues with the trademark. So, for example, either it's too descriptive or it's generic, or there's a likelihood of confusion with another trademark, or there, you know, are some procedural issues. So you send in the application that your company is an llc, but really it's registered as a corporation. You know, those are easier to solve. But in the case that the office action has substantive issues at that point, then you can submit an argument in the form of a legal brief explaining why the trademark actually doesn't have those issues. And hopefully you convince the examiner and, you know, if you do a good job, the mark will go through.

So are you running into. So when we talk about the CBD space now, right now in cbd, we're talking to somebody in CBD practically every week somebody calls here because there's so many people jumping into this space.

Yep.

So first off, is there any. Does CBD offer additional complications in trademarking?

Yes, absolutely. And I have a lot of CBD clients right now that they're really playing this blackjack game that I mentioned before. You know, they're submitting names, hoping to obtain brand rights, knowing that Many of the names that we submit likely won't go through, but. But the IDE is to just submit, you know, submit 10, play a numbers game of submit 10 highly desirable marks, and then hopefully one or two of them they'll get. But, you know, the main problem with CBD and trademarks is that under federal trademark law, you can only obtain a trademark on a good or service that can legally be sold in commerce. Cannabis, of course, is illegal under the Schedule 1 of the Controlled Substance Act. So, you know, what does this mean? This is a real challenge for some of the federal bodies right now. You know, how do we think about cbd? How does the FDA think about cbd? How does the DEA think about cbd? How should the United States Patent Trademark Office think about cbd? So it's certainly the case that cannabis, marijuana, if you wanted to get a trademark on your marijuana strain, that 100% would not be allowed because marijuana strain that falls flatly under the Schedule 1 Controlled Substance Act, CBD is a little bit trickier, you know, and again, I think depending on which trademark examiner you get, you'll have more or less success. But the trick there is to list in the description of what it is you're selling. You really need to make it clear that the CBD comes from industrial hemp, from the mature stocks and the seeds, and not from the, you know, marijuana in the strict sense. But again, depending on who you get, I think you'll have more or less luck.

So this is why Pablo Escobar didn't.

Have a circle R. Yeah, that's why.

On the gold labels that he used to put on his bricks of cocaine, because he didn't have a trademark, he did have a logo that he put on him.

Different category, cocaine, Very, very different spaces.

Unfortunately, from the United States Patent Trademark Office, cocaine and weed is the exact same thing.

Right.

Inane as that may be, from their perspective, it's identical.

Now, CBD isn't. CBD have different rules in different states yet, or that's not really decided yet.

Is does. So, you know, with cbd, the key is to remember that CBD laws are operating on two levels. On the federal level and on the state level. And then of course, within the federal level, there are different administrative bodies that feel differently about it. So from the United States Patent and Trademark Offices perspective, what the states say about the CBD is not relevant. They only care about what the federal government says. Okay? Now, it is true, however, that certain states who have their own trademark registration offices, they do care about what the states say. So what you'll find a lot of companies doing who are in the cannabis space, who are in the CBD trademarks that aren't subjected to the same prohibition against filing a trademark that for a good or service that can't legally be sold in interstate commerce. Right. They don't have that same federal restriction. Yeah, CBD is challenging. You know, we passed the farming bill, what in December of 2018. And you know, that legislation, it still hasn't fully trickled down to all of federal administrative bodies in a consistent and clear way. So I think we're still looking for rollouts across federal agencies to see how to see any sort of uniformity and how it's going to be viewed.

Well, can a company now make a CBD product and sell it in all 50 states?

No, not necessarily. First of all, you know, the important thing to understand about CBD is that there the devils really are in the details. And when we say cbd, where was it derived from? Was it derived from hemp or was it derived from marijuana? Hemp and marijuana are actually technically the same thing. They come from the same plant, both from cannabis. The difference though is the content of THC within the cbd. So depending on the specific levels of THC in the specimen of cbd, it's either CBD derived from, from marijuana or CBD derived from hemp.

So let's assume for a minute, for the sake of this conversation, we're talking about hemp derived cbd. So I've got cbd, it's hemp derived. Now can I sell it every place?

Not necessarily on a federal. There is still a lot of confusion about this. There's no doubt on a federal level the hemp bill of 2018 certainly pushed it forward. So that it would be hard to imagine anyone really getting into big trouble for selling CBD from hemp derived products. But you know, that would stop big.

Chains from getting involved with it though, because they won't take those kind of risks.

Yeah, I mean, big companies, I think are. I often get asked the exact same question actually from little guys. You know, how did the big companies do it? The big companies are in a bit of a different situation. One reason is that these large companies in this space are often actually licensed by the state to sell. Many of these small companies are not. So that's a big difference. And not every state feels the same way about cbd. California, for example, is a very interesting case where not too long ago they prohibited infusing food products with hemp derived cbd. That's not Allowed, but food products that had CBD that's derived from, you know, marijuana. Marijuana derived CBD products are allowed as long as the producer of that product had a license to sell.

That makes sense in California though, doesn't it? Because nothing actually normally makes sense.

Well, it's also that the marijuana industry is legally. What's the prop that passed. So now that is a, that's an industry there. It's a legal industry there. Whereas CBD is kind of a gray area, is that right?

Yeah, I mean, there's no straightforward answer on all this stuff. I mean, some people find it kind of counterintuitive.

We're full of gray questions.

Yeah, I see that. So when we're looking at CBD products, now we also have the issue of what claims can someone make if their product had CBD in it.

Right.

Because now we're, now we're stepping into the FDA's role.

Yep.

What's the story there? What claims can somebody make for cbd?

Yeah. So as a general matter, the FDA has not gone after CBD companies, let's say, in the last year or so that do not make any claims, any health claims. Basically what the FDA is worried about, what all these government bodies really care about, at least optimistically, what we hope they should care about, is that they want to bridge the gap between the manufacturer and the consumer. They don't like this disparity of information between manufacturer and consumer and they want to make sure that everybody is working with the same information. So the FDA says about CBD and CBD infused products, rather, we don't really know enough about the health effects and benefits of CBD yet for you to say that your CBD chocolate bars are going to confer different types of health benefits. So, you know, don't say that, don't promise that you're going to cure cancer, don't promise that you're going to do all these things if we don't really have evidence for that. So that's where companies get into trouble. They become too loose with their poetic license vis a visa health claims that they make and that they put on their products. So it's just a really important thing. You know, you might be tempted to say that it's going to cure arthritis, but definitely do not do it.

Are you seeing any advertising restrictions in the space right now? Is there any no go areas or any places that are just. Yeah.

Advertisements are typically governed by the domain of the local city, the state. That's a very state specific issue. Certainly in cannabis there are a lot of advertising rules. California has a ton of them. Where can this billboard be? Can it be on a highway? Can it be on interstate highway? How far away from schools? Off the top of my head, I can't honestly think of any CBD specific advertisements, but I can certainly say that on a privatized level. Companies like Facebook, Instagram, they have a lot of rules about this. Their current conditions, the privacy policy, they're very restrictive about advertising that can be done on their platform that has anything cannabis related.

Is it any different if you said my product, instead of saying my product is cbd, I said my product was hemp oil.

Potentially, I suppose it depends what you mean by different and different to whom and different where do I have less.

Risk as a marketer if I call it hemp oil instead of cbd?

Yeah, potentially. I mean, the key there is that you have to really make sure that it is from hemp. Like as we discussed before, this is a technical matter. You know, you need to make sure that you're dealing with a hemp producer that knows the difference between hemp and cbd, which, as we said, is a function of the level of THC within the source plant and how it's distilled. And can you provide evidence of that? You know what the government cares about. The government is a stickler for two things. They're stick order for time. They're very worried about time when you file something, how long it takes, and they want documentation. So, you know, if you're selling CBD products or hemp products, do you have documentation from your manufacturer which certifies the amount of CBD in it or THC in it, what levels, what type of testing was done, so on and so forth.

So if you, let's say you wanted to put a topical analgesic on the market with cbd, knowing the limitations that you have, knowing how you can't make claims, would you take that CBD and mix it with capsaicin or something and use the monograph for the other OTC drug?

I actually have a client right now. I've done a number of trademarks for them. I'm not going to say who. They're a company in the Midwest. They sell bombs and a number of things. The whole cannabis and CBD game is a bit of a game of risk because as we said, there is no, unfortunately, strict uniformity amongst the federal bodies. And you know, when you're in this game, you're thinking about different agencies. What does the DEA think about this? That's probably the worst agency that you Want to cross. Then there's the fda. What do they think about this? How do they interact? Then there's ups, usps, the agencies that are actually shipping from state to state. Then what happens when you ship through one state that doesn't allow cbd, but into a state that does allow cbd? You know, can states even not allow CBD to pass through the border? So the most important thing is for companies to understand that all of this is still, unfortunately, a legal gray area. As a general matter, I counsel clients to not put any health crims on it.

Well, so, you know, just fundamentally, it's a risky game and it's up to the client to decide how much risk they want to take. There are ways of mitigating that risk by not doing certain things and not selling in certain places. But ultimately, the client should be aware that they are potentially running across a thin rope.

AB are. They're different. If someone was going to move into this space, would you. Is there a particular type of incorporation or type of company that you would want to set them up as that would give them the best shield or the best protection?

Not necessarily. I mean, basically, what business entities fundamentally are designed to shield individuals from civil, you know, claims of civil liability.

So.

They can't do anything against criminal issues. Right. So, you know, if you set up an LLC and you sell a food item and someone gets sick and you get sued, your LLC gets sued, not you as an individual, and your personal assets are not implicated. But, you know, you couldn't set up a cocaine factory under an LLC and say, well, you know, I want my LLC to get sued, not me.

There goes our new company, Rob.

Yeah.

Too bad Pablo Escobar didn't. Wasn't Pablo Escobar Incorporated?

Well, we just started Rob and Mark's Excellent. Koch llc. We're gonna have to shut that one down.

Let's run it out for a little bit.

So it really doesn't matter then whether somebody is an LLC or a C corp or an S corp. Nothing's going to protect them from breaking the law.

Precisely. Where you get into different, different business structures that may be better or worse. You know, there's of course, always the general business questions of why set up one LLC or another? So do you plan on having institutional investors? An institutional investor, a VC firm? They're never going to invest in an llc.

Right.

If you want to set up a robust business entity with different types of stock options, common stock preferred, you have to be a C corp. You can't be an llc. Right. But you know, certainly this used to be the case in the last number of years. Different states had different preferences as to what sort of business entity they wanted a company that was applying for a cannabis dispensary license or cultivation license to have. California notoriously had somewhat of a complicated schema where there would be kind of these weird nonprofits that had to hold the dispensaries. That's a thing of the past. But in general, I would say it's a non issue. Better to select the business entities according to your business plan. Investments, co founders, all this kind of stuff.

What would you say then for somebody who's looking to go into the CBD business, when we talk about Everything in that business is a function of risk, right. What is the risk? I mean, what, how much risk are they taking on? What's the worst thing that can happen? What's the thing that's likely going to happen and how do they mitigate it or reduce that?

So typically I advise clients this is both from a legal standpoint and then I think just as a general good business point of view, I think where people are making the most money in this space is by providing goods and services that are ancillary to the product itself. So, you know, you have companies that are developing whole lines of smoking products, so like grinders, cigarette holders, lighters, all sorts of goods that kind of facilitate enjoying the product itself without actually getting into selling the thing itself. So personally, as a business model, I like that a lot more there. You're not, there's no risk, of course, you're not trafficking in CBD or cannabis, none of that. You know, if a company were to sell cbd, you know, who should they be worried about? The fda, The DEA states? Different states have, certainly some of the southern states have very restrictive laws about cbd. And then, you know, like I said, you really want to know where you're getting it from. And can you document everything that's in your cbd? I suppose this is somewhat of a supplementary issue, but vape pens right now, you know, they're notorious for containing aluminum and metals. Poison, really, that people are not signing up for when they smoke them. And I think with CBD oil, you're seeing this too. You know, everybody, I live in Manhattan. My office is in the financial district. You can go into all these, you know, they're just smoke shops and bodegas that sell low grade vape pension with CBD oil on it. Do you really know what you're getting? I would say no. And a lot of the bad Reputational side effects of this industry is I think, a function of just how ubiquitous these products are. In a very low level form. You can just get CBD vape pens everywhere and they often are full of contaminants. But again, assuming that you're running an honest business, then that's. That as a particular issue is not something that you should worry about here in Michigan.

So now we've passed the law that it's legal to have marijuana, but not legal to sell it to you. So the game they're doing now is you buy a t shirt for $50 and you get three joints with it free.

Yeah. To purchase here legally. I think it's supposed to.

That's why I have so many T shirts in my office now.

I was wondering why it smells so.

Good in there and I've got 47.

T shirts on my chair.

I just thought it was the T shirt, some sort of cologne. There's also. It flips in December, the earliest that it will flip to legally purchase or to legally sell to a non med card holding purchasers. December or something like that. So they had a year to clean up the legal gray areas in theory, but that's one. One way people are obviously getting around it. I have to get your T shirt seller after this now.

Just, just in reality, actually I have no T shirt.

It's really interesting that that's actually, it's reminiscent of kind of the European prostitution models where it's legal, but in many ways it's the reverse. But where it's legal to sell prostitution but it's not legal to buy it.

I do have European prostitutes in my office.

That's the Spell podcast in your office. Yeah. But, you know, the idea is, you know, who are you targeting in the prostitution model? They want to criminalize the johns and not the sellers. In this case, it's kind of the opposite. They want to penalize the sellers of marijuana and not the, the people who were just smoking it kind of recreationally.

They're trying to frighten that demand versus the supply.

Right, right, right.

So, Abe, if you were looking into a crystal ball right now, where would you say the CBD business is three to five years from now? What does it look like and who's dominating it?

Yeah, I'm personally much more optimistic about the CBD business than the strict marijuana business. I strongly suspect that, that cannabis in its entirety, both CBD and marijuana of the THC variety, will become fully federally legal in the next five years. Certainly. I have no doubt about that.

So let's look at them separate. Let's look at cbd. Where's CBD at? Three to five years from now, CBD.

Is gonna be legal? Well, I can tell you as a personal matter, I am a strong believer in, in the 10th Amendment, federalism, state rights. So I like the idea of every state deciding for itself whether or not they want it to be fully legal. I mean, cbd, I think you'd have to make a really hard case for it not to be legal. It doesn't have any of the psychoactive effects that people are worried about. But nevertheless, for whatever reason, it's still controversial. I like the idea of states voting on it. I think in three to five years, with the exception of a handful of states in the South, CBD is just going to be fully legal across. And hopefully the various federal administrative bodies are all going to just kind of get on the same page about how they treat it. Marijuana, on the other hand, I'm not as optimistic about. In New York, for example, I can tell you that the. The politicians and, you know, we live in a heavily Democratic state, both in New York City, where I am, and then across, I can speak about New York City. You know, people are the politicians. You know, they proclaim their love for cannabis. We want to legalize cannabis here. But, you know, in many of the bills, the cannabis provisions are being wrapped up in a lot of other social justice Y type things that are never going to get approved. So.

Well, you guys can't even have a salt shaker in New York though, I.

Thought, right, we can't have straws. What about that? Just that.

How does the cocaine ingestion happen then? Oh, dollar bills.

Hundred dollar bills.

Yeah.

Paper straws.

Yeah.

So where do you think the business goes, though? Does on the marijuana side, does it end up in the hands of the big drug companies? Does it end up in the hands of big tobacco? Because right now, CBD and THC and marijuana is very much a cottage industry for the most part. And I guess what I'm wondering is, at what point do the big companies step in and say, okay, we've cleared enough brush out of the way. We're coming in and we're taking this over.

Yeah.

And I think there's kind of an.

Interesting philosophical sociological question which underlies this question, and many people have very strong views about this. Should there be big pharma? Should big tobacco companies, should big industrial companies come in and take over? Some people say, absolutely not. It somehow denigrates the cannabis industry as a whole, what it means, and other people want it because frankly, you know, like any business or like any commodity based economy, you need people that know what they're doing. So while it's true that many of these big companies are going to be eating up a lot of the profits and a lot of the market, they're going to bring a legitimacy to the market through kind of their strict regimentation of how to build this business. So I think there are good arguments frankly to be made on both sides of that debate. But ultimately, yes, I do think the big guy, just like anything else, is going to come and swallow up the little guy. And there is something sad about that.

I mean, from a branding standpoint, think about it. If Pfizer was making marijuana or jj, whatever the case is, as a consumer, you would at least say, well, I'm confident that the quality is going to be consistent, that it's not going to be contaminated because these companies have FDA regulations and they don't want to be sued. So I could see them having, besides for the ability to have scale, they could have some real market advantages.

Yeah, I mean, that's where the, you know, the state versus state versus federal regulations come in. It's not going to make financial sense to any of these big companies to come in. You know, it's, you know, like a Monsanto to come in and buy up a federal property if it's all governed by state and not legally everywhere. But that's where a lot of the debate is right now on the local grower side. So the, in Michigan, which is legalized, you have a lot of the small growers who were suppliers to the clinics or the dispensaries are now kind of getting edged out because the laws in Michigan are making it more governed and better quality. They're making it like you have to meet certain standards like producing at a food quality in a food quality facility or whatever that are just going to naturally cut out the small players. But it's also going to take the people who are connoisseurs, if you will, and cut them out too. They'll eventually start growing again. But the people who are more interested in quality and where the fears are around use of product or clarity on what CBD is versus marijuana, those people will start jumping in. But until there's a federal standard, you're not, I don't think you're going to have Marlboro buying up.

Yeah, I think it needs to become, it needs to cut across nation. But from a marketing standpoint, I'm gonna liken this to the video business. When the VHS rental business started. It was guys in the trunk of their car that were coming to your house with movies.

Yeah.

Then it went to little independent stores. Then all of a sudden it turned into Blockbuster. It was a chain of stores. Then it turned into Netflix. I'm wondering if we're not going to see that same kind of evolution where it goes from the little guy from the dispensary to all of a sudden it's in Walmart, and all of a sudden RJR is controlling it or something of that nature.

That.

That kind of. That progress usually happens in most industries.

Yeah. But I think a lot of that is going to be, you know, it's going to be driven by the legal side of it, where it's what's legal here and that. Where you're going to get nailed for bootlegging videos versus downloading them. It's going to come down to, I think, where the law lands from a federal standpoint, because Michigan's state laws are different from California's state laws. And until there's some unified regulations, there's no big national brand. I mean, we've talked about this. I wanted to have a national marijuana brand forever, but until they figure out interstate commerce laws, it's not going to happen. So why would I invest all kinds of money into making a weed brand in Vermont or New York until I can get all 300 plus 370 million people? Doesn't make any sense from a big company standpoint.

How long do you think it'll take for that to happen?

Just as you guys were talking about this, it occurred to me that if this were any other industry, you know, when I'm in New York, when I walk around and I see Starbucks on every single corner, I'm honestly just kind of disgusted on a very visceral level. You know, I love walking around in the financial district. I just discovered this little tiny hole in the wall. Italian coffee shop, a mom and pop store. And I absolutely loved it. And I decided I'm only going to be buying coffee from there from now on.

So they probably don't sell Seattle's Best.

Is what I'm probably not. But so, you know, as a general matter, I don't like the idea of companies just coming over in a very dystopian way and just popping up everywhere, you know. But as a general matter, I do feel that way with cannabis, though. You know, if you really do believe that this is medicine, that this is a real drug with real meaningful potential effects on a person's psychology, on their body, then you need to have companies that know what they're doing that, as you said, are putting in the measures and systems in place to give you a consistent, safe product. So, you know, this thought literally just occurred to me in the last five minutes. But, you know, I think, you know, I don't mind these big companies developing such a strong influence in the cannabis space. Well, I think it's an inevitability. There is going to be a Starbucks in the cannabis space. Who's it going to be? I don't know.

Yeah. But I think what you'll see is what's happened in beer and alcohol where you have InBev, who's Budweiser, who owns everything. I don't fucking drink Budweiser. But I'm going to seek. You're a snob, but I am. But I think you have. Like you're saying, I don't drink Starbucks either. I much prefer the local place because I feel like their quality is better, their attention to detail is better. But I also appreciate the fact that Anheuser Busch probably helped make beer legal again. You know, so there's, there's that. We do need these big pioneers with all the money, but I think after a certain period of time, you're going to have these craft brewers, slash growers, slash purveyors popping up that people who care about the quality or, you know, the farm to table aspect of things are going to start seeking those out instead of. And yeah, I'll drink Budweiser in a pinch.

That's what I think is going to happen. I think this is going to. I wouldn't be surprised if the ATF doesn't even end up controlling this and liquor control commissions, and this ends up being something where you've got the big national brands of beer or whiskey, and then you have all the craft brewers or the craft growers and all kinds of small brands that offer different experiences or different flavors.

Whatever the case is, I think that's entirely possible. The only reason why that's so difficult for that to happen right now, and I think even in the foreseeable future, is because of just how difficult it is to get a license to both grow and sell cannabis. The stigma is so great right now. It's such an unbelievable Herculean effort to go and get one of these licenses that if you're a small mom and pop, it's not, you know, it's not practical, you know.

You know, the funny thing is I've never used marijuana my entire life, as you know, but I Think under the Constitution and looking at alcohol, I don't know why we're treating it different than we're treating alcohol.

I think it comes down to public perception, and you do have big driving forces that will make sure that alcohol is never illegal again. And I think you need that same sort of catalyst in this market to make it federally acceptable. So then states will pass or regulate as they see fit. But you do need a big powerhouse, unfortunately. I'm with you. It feels like it's an inevitability. And to me, that's where the branding has to go. And that's really what will help start clearing up the gray areas. When you have a company that has more money than the American government itself, it's hard to challenge them.

But, yeah, you know, I happen to. I'm personally a huge fan of constitutional law. There are actually.

So am I.

You are, too. Okay. So, you know, really, there are three separate arguments that could be made for the legalization of cannabis. The first is a federalism 10th Amendment argument that it's unconstitutional for the federal government to restrict it and not. This is clearly a state's issue, at least it should be. So there's a 10th Amendment argument. Then, of course, there is a 14th Amendment due process argument. I don't really like the idea of substantive due process, which is this idea that, you know, there are some things which are so fundamental that even through the process, through due process, you still shouldn't be able to take that right.

You know, you could even make a.

Ninth Amendment that are given under the. Okay, well, what is it?

Let's hear, if you think about a ninth Amendment argument which really says that there are certain rights that are not covered by the Constitution, which are still inalienable rights that are left in the hands of the people.

This fundamental rights idea.

Yeah.

That mirrors your right. Yeah, sure.

So I know we're almost out of time, so I wanna bring us back down to earth really quickly before we have to go. Have you ever to a judge said, you're out of order? Whole courtroom is out of order, but.

Unfortunately not, damn it. I'm a transactional attorney. Although I would love to say that frankly.

Well, this interview's over.

Dave Cohen, thanks for being with us on CPG Insiders. Now, how do people get in touch with you?

Yeah. So first of all, thank you so much for having me. This was a pleasure. And I love talking about this stuff. You know, people can Visit our website, www.conelg.com. that's c o h n l g dot com. And I'm also very active on Instagram and the Instagram handle isonelg.

So, folks, if you go to the show notes at CPG Insiders, we'll have links to Abe's social media and to his website. And if you're looking for information, you know, if you need help with trademark registration or you happen to be in the CBD business, you also do a lot in all the CPG categories, not just what we've been talking about here.

The food industry is a huge vertical for me and I love working with food startups and I know quite a bit about some of the unique issues that food startups face.

This is an area just for the listeners out there. This is an area trademark law specifically is where you. I feel like you need somebody who knows what they're doing and knows their way around it and can't just be shooting in the dark.

I agree. Absolutely agree. Abe, let's bring you back sometime and we'll get into some of the food business of cpg.

I would love that. Yeah. Thank you so much for having me. This was a real pleasure.

Thanks, Abe.

Terrific. That's it for today on CPG Insiders. Again, if you have any other questions, you can always reach out to Abe and talk to him. And you can always go to our website, which is cpginsider.com or jekyllheidagency.com and you can reach out to any of the experts here at the agency. If you have any questions, any final words.

Rob, thanks. Thanks. I appreciate it. That was a good conversation.

We'll see everybody on the next episode. If you're looking to greatly increase sales on your CPG product, don't hesitate to contact us at Jekyll and Hyde Advertising and Marketing. By the way, the only advertising agency with a guaranteed result, just go to jekyllheidagency.com or feel free to give us a call at 800-542 10.