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No CBD for CBS During the Super Bowl

Last year I blogged about the NFL’s aggressive enforcement of its trademark rights in the SUPER BOWL mark on Norris McLaughlin’s More Than Your Ma®k blog.  (You can check out that post here.)  The NFL clearly understands that trademarks are a mainstay of its brand and so, unsurprisingly, acts aggressively to protect them.  As a precautionary measure to avoid enforcement by the NFL, many third parties refer to the SUPER BOWL game as “The Big Game” to avoid inquiry by the NFL.

The NFL’s brand protection goes beyond just trademarks.  However, the more recent example of brand protection of the SUPER BOWL was not taken directly  by the NFL, but by CBS.  On Jan. 22, USA TODAY broke the story that CBS rejected Acreage Holdings’ Super Bowl commercial promoting medical cannabis (here).  A spokesperson for CBS told USA TODAY Sports that “under CBS broadcast standards it does not currently accept cannabis-related advertising.”

The commercial runs more like a public service announcement, promoting the benefits of medical cannabis through the stories of three different users of medical marijuana.  The commercial closes with an invitation for viewers to “Please call your U.S. Representative or U.S. Senator to advocate for change now.”  The final frame of the commercial ends “A Message from Acreage Holdings.”  Rather than a shameless plug for Acreage Holdings’ numerous goods and services that span the cannabis production and distribution chain, the commercial resembles a political call to action for medical cannabis supporters.  You can see the entire ad here.

Under the recently enacted Farm Bill, industrial hemp and its derivatives, such as CBD, are no longer Schedule I controlled substances.  States across the country are in the legislative process of legalizing the medical and/or adult recreational use of marijuana.  Yet as the reaction from CBS shows, the stigma surrounding the use of cannabis, even for medical purposes, is persistent, and in this case prevents access to commercial spaces for cannabis businesses.

And the NFL and CBS are not the only ones resistant to any affiliation with the cannabis industry.  In September 2018, M. Shanken Communications, Inc., the publisher of Wine Spectator magazine, filed suit against Modern Wellness, Inc., a company that owns and operates a cannabis rating website, www.weedspectator.com.  The case, filed in the District Court for the Southern District of New York,  was styled as M. Shanken Communications, Inc. v. Modern Wellness, Inc., No. 1:18-cv-08050-AKH.  In addition to trademark infringement and unfair competition claims, the complaint asserted a dilution claim, asserting that “M. Shanken has no interest in associating Wine Spectator and the WINE SPECTATOR Marks with cannabis, a largely illegal drug.  Any association of this type is likely to tarnish the reputation and goodwill that has been built up in the WINE SPECTATOR Marks and business for decades, resulting in dilution of the brand.”  You can read the entire complaint here.  While that case was settled a few months later in December 2018, the lawsuit illustrates a prime example of concerns held by non-cannabis brand owners.

While there appears to be resistance from CBS in associating themselves with cannabis brands, there seems to be an underlying acceptance of cannabis ads at least on site at the SUPER BOWL game.  Forbes is reporting that Baristas EnrichaRoast CBD Coffee ads will be shown at Mercedes-Benz Stadium where the Super Bowl will be taking place.  So, while you may not see Acreage Holdings’ ad on tv, look closely when watching the game to see if you spot the CBD ads in the stadium.

For more information on the intersection between trademark and cannabis law, please contact me at ssspangler@norris-law.com or call our offices at 212-808-0700.