When Charlotte Figi passed away on April 7th of this year, the young warrior left behind a legacy of inspiration and hope for patients suffering from intractable epilepsy and other seemingly incurable diseases and disabilities that they and their loved ones may find some relief, however temporary, through cannabis.
Known as the adorable face of the ongoing effort to normalize and legalize medical marijuana for minors, Charlotte’s appearance and story on CNN with Dr. Sanjay Gupta in 2013 is undeniably one of the most pivotal moments in this movement.
Over the course of Charlotte’s short life, the push to legalize cannabis has swelled to an all-time high in popularity, with at least 2/3rds of Americans polled saying they’d be in favor of legal weed nationwide.
In that all too brief window of time, eleven states have done just that; formed regulated markets for recreational cannabis for adults. Dozens more states have implemented medical marijuana markets, many specifically put in place to allow children like Charlotte to receive medically prescribed CBD products. This is all a part of one brave little girl’s legacy.
Also forever a part of Charlotte Figi’s story will be the Stanley family, a group of brothers who provided Charlotte’s mother, Paige, with the CBD-rich oil that would so drastically benefit her daughter’s quality of life and who co-founded a company called Charlotte’s Web, Inc. (CWI).
For years, parents of epilepsy-stricken kids packed up their lives and trekked to Colorado to seek admission into the Realm of Caring, the non-profit wing of the Stanley brothers’ operation. This mass migration and the press it caused catapulted the company into a dominant market sales leader in the CBD sector as they became a household name known best for, and named after, their flagship cannabis strain named Charlotte’s Web which is, of course, named after Charlotte Figi.
The headline-prone Stanley brothers have earned a mixed reputation in the cannabis culture. For every positive piece of news or parent who sings their praises, there seem to be two more who have adverse stories about their experience with the company.
From accusations of self-serving lobbying efforts, to unsustainably long wait lists for patients to receive their products, to unreliable potency totals, to labeling controversies, these bros have found themselves on the defense several times before in the court of public opinion and the court of law… but not always.
WHAT’S IN A NAME
For years, CWI has fought to maintain a tight grip on the strain name Charlotte’s Web, unwilling to release seeds, clones, or any other form of replicable genetics of the cultivar, much to the consternation of many cash-strapped parents of sick kids.
Critics (and competitors) argue that the company made a crucial mistake by naming themselves after such a common term, and especially after a strain of federally illegal cannabis.
It seems that the Feds agree, so far at least. In October of 2019, Charlotte’s Web had their trademark application for the plant name denied by the USPTO. The Stanleys say that they were only temporarily denied due to the federal prohibition of cannabis, though they are cultivating federally legal hemp. Regardless, their competitors see an opening and are taking advantage.
This has put CWI on the offensive, their latest target being a company called AAXLL, d.b.a. Balance CBD, which has been named in a lawsuit (Charlotte’s Web, Inc. v. AAXLL Supply Co LLC d/b/a Balance CBD, Case No. 4:20-cv-02692-YGR in the Federal District Court for the Northern District of California) over their alleged use of the name Charlotte’s Web in their own proprietary product line.
AAXLL is fighting back, though, with CEO Joseph Maskell saying in a press release, “U.S. federal trademark law already dictates that cultivar or strain names are generic from the get-go, so the Charlotte’s Web name of the strain was never protected as a trademark. CWI cannot prevent the rest of the world from referring to Charlotte’s Web as a strain of hemp any more than a French winery could prevent the world from referring to Chardonnay as a varietal name of grapes.”
Possibly recognizing the steep legal hill before them, CWI has stated that the company “may rely on common law theories of trademark protection and enforcement in cases of actual or suspected trademark infringement” of the Charlotte’s Web name.
Because the federal government is still tripping over itself trying to regulate the awkward legalization of the “hemp” version of the cannabis plant while still treating cannabis as an illicit controlled substance, companies like CWI do not have federal protections, yet, for their intellectual property. Remember that denied trademark app.
So, the “common law theories” that they refer to are workarounds that many cannabis-related companies have had to resort to over the years as they work to establish and protect their brands. Or, in this case, try to monopolize a CBD-rich medical cannabis cultivar.
The most common way of doing this is a method known as “trademark laundering” where a company may start branding t-shirts, hats, stickers, grinders, consulting services… anything they can that can be sold legally and protected federally under IP laws. (Buy a hat!) But most folks can agree that there is a big difference between doing it to protect your original grassroots brand versus doing it to hoard a strain name.
It will be very interesting to see how the case between CWI and AAXLL plays out, as it could have a wide-ranging impact on other companies whose IP could get sniped if their brand is named after a strain.
Valued at a half a billion dollars, CWI can probably create an unsustainable financial nightmare for any competitor who tries to beat them litigiously but the fact remains that you can pop ten Charlotte’s Web “hemp” seeds and get ten different phenotypes that express ten different cannabinoid ratios. That is hard to wrap legal language around.
Lawrence Ringo, a bonafide legend in the history of cannabis and CBD, surrounded by his closest friends and family, allegedly insisted from his deathbed in 2014 that the Stanley brothers used his seeds to develop their now famous Charlotte’s Web strain.
Cultivar or strain names play a unique role in cannabis culture and the true lineage should be preserved, in our opinion. No word yet on whether the ghost of E.B. White has arisen to sue the Stanley brothers over their blatant use of the title of his 1952 children’s book.
“O, what a tangled web we weave when first we practise to deceive!”
Sir Walter Scott