Well, that's the record set straight,
all right. We say: "famous last words."
Rolling
Stone, 27 January 1977, p. 49
The
Rolling Paper Revue
by
Abe Peck
[Peck
visited the headquarters of the U.S. Patent and Trademark Office in Arlington, Virginia.]
I
looked up the trademarks for Acapulco Gold and Panama Red. And I found them!
There was an Acapulco gold registered to Heublein Inc., of Hartford, Connecticut,
the people behind everything from Kentucky Fried Chicken to premixed drinks.
Another Acapulco Gold registry was held by Charmer Industries, a liquor
distributor based in Smithtown,
New York. And there was the
Acapulco Gold trademark held by RD III Ventures of Great Neck, Long Island.
Panama
Red was registered to Heads and Company of Indianapolis. And when I moved to less
predictable color schemes, I found Jamaica Gold registered to Brick-Hanauer of Waltham, Massachusetts,
and Tennessee Green held by a Nashville
company of the same name.
There
was only one hitch: the Acapulco Golds were, respectively, a chip dip, a
tequila and a suntan oil. The Panama Red, a cologne. The Jamaica Gold, a cigar.
The Tennessee Green, anticlimactically, a matchbook.
There
were no marijuana registrations. And, if we believe C. Morten Wendt, the
director of trademark examining operations, there won't be any until
legalization, when and if.
Wendt's
name reminded me of "C. W. Moss," Bonnie and Clyde's
sidekick. Seated in his office down the hall from the Trademark Search room,
Wendt himself, mid-50s, dapper, his hair neatly trimmed, looked a bit like the
bankers the Barrow gang loved to visit. In a high-pitched voice, Wendt
explained why it is currently impossible to register any trademark for
marijuana.
"You
see, the owner of a trademark acquires property rights through use of that mark
before the public as a means of identifying goods. Now, trademarks for
marijuana are not registerable. The mark
must be in lawful use in order to be registered. Our government has not
legalized the sale of marijuana. Therefore," he said with the confidence
of a man who lives by the rules, "marijuana is not a product that moves in
commerce. Therefore it cannot have a registerable trademark."
Wendt
asserted that nobody would use the name "Acapulco Gold" for marijuana
even if it became legal. "It's more or less a generic term for it. And
therefore, nobody has the exclusive right to the use of it."
I
felt better. I couldn't register it, but neither could anybody else. But I
recalled that Amorphia had raised money by selling Acapulco Gold rolling
papers. I asked Wendt about it, and he replied that they never actually
registered their common-law trademark.
"We
would not register that," he said, "for the simple reason that we
would say it would be deceptive."
"In
the sense that it refers to a marijuana product?"
"Right,"
he answered.
Assassination
buffs have "smoking pistol" theories to explain their conspiracies. I
asked Wendt about what might be called a "smoking reefer" conspiracy
-- that the cigarette companies have already registered the most commercial
names that could be applied to marijuana.
"Oh
that's all false! That's all false!" Wendt seemed genuinely angry.
"For one thing, our records are open to the public. There is no such thing
as reserving a mark. We have combated this story for the last 15 years, and so
it is absolutely false.
"There's
no protection given to tobacco companies, and they would never -- it would be
very poor business if they were to take one of their known brands, their known
trademarks, in the event that marijuana does become legal, and use it upon a
marijuana cigarette."
"Where
do you think this tobacco company rumor came from?"
"I
don't know -- but honestly, I've been asked it by every one of the news
syndicates and the New York Times and
I don't know how many others."
I
recalled a book called Pot Art, which
quoted Ronald Reagan on the tobacco conspiracy. I gave the "smoking
reefer" theory one last try.
"You
know that Reagan said in 1972 that there are 14 tobacco companies which have
trademarked marijuana."
"What,"
Wendt replied icily, "does Reagan know about trademarks?"
JACK
ANDERSON'S column appeared the day after I typed up my notes on Crystal City. A call to his office revealed that
the people who wrote and researched the column under Anderson's byline had no evidence that
specific tobacco companies were preparing for marijuana cultivation on their
land. "But," said Gary Cohn, the reporter on the story, "they
all own land down there which, according to my sources, is perfectly
convertible for grass." And Cohn made a new and interesting point:
"The
way I understand it is that if the company has a trademark for a smoking
product -- say cigars or cigarettes -- you can transfer it to another smoking
product. That's what I believe and what some legal experts who've researched
the matter have told me." Cohn agreed with Wendt's contention that liquor
companies outside the smoker's article class wouldn't have a head start with
their names if marijuana became legal. Companies like Acapulco and Tijuana Smalls cigars, though,
might.
The
image of a smoking reefer pervaded the room. I called Wendt back.
Though
not an Anderson
fan, Wendt admitted that the tobacco companies could potentially transfer their
trademarks within the smoker's article class. But he made his own interesting
point.
"I
doubt if any one of them would transfer," he said. "Even if marijuana
becomes popular, there's such a thing as the good will of the product. The
product has been established as a tobacco product, and not everyone who smokes
tobacco would want to smoke marijuana. I think it would be very poor business
policy. If it was not labeled that the ingredient had been changed, the
purchaser would have cause of action against the owner of the mark."
So
there I was, blocked from making a fortune, with only the word of the director
of trademark examining operations that the companies would respect the good
will of their products as my consolation. It seemed like there was only one
thing left to do, and I did it. That night, before going to sleep, I left a
flowerpot with a hardy green weed in it on my hotel balcony. The next morning I
rendezvoused with a Washington
trademark attorney. Call him "Deep Toke."
"I
have never done it for any of my clients," Deep Toke said about
registering handy names. "And I'm not sure there's anything unethical
about it. If you're talking about actually putting out a product -- Tijuana Smalls is an
example. That's a very viable product. Now they picked a name for it that may
provide some help if marijuana is ever legalized. But that's a very good
product for that particular company, I'm sure, and their main interest is
probably in cigars."
"In
your opinion," I asked Deep Toke, "have tobacco companies registered
names for marijuana?"
"My
reply would be that they have registered a number of names that may be useful
in connection with marijuana cigarettes if they were ever legalized. But I
don't think that was their intention in doing it. I really don't."
Needless
to say, it wasn't hard to get the tobacco companies to agree. "Our own
company has no plans for the production of marijuana cigarettes," said Dan
Provost, director of corporate communications for Liggett Group Inc., "and
reliable sources have said that no other company has either." Harold
Edison, trade-relations manager of the General Cigar and Tobacco Company,
makers of Tijuana Smalls cigars, said, "We knew there was a danger with
the name, that Tijuana had a reputation. But," he added, perhaps a bit too
kind to our neighbor to the south, "we found that the name 'Tijuana' had merit aside
from any drug aspect: it's associated with liveliness, youth and fun." The
American Tobacco Company: "We don't discuss marijuana at all." [...]
