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Protecting your brand in the green rush

When the recreational cannabis market opens up, there are predictions of a “green rush” where major producers will not be able to keep up with demand from the general public. This will be a boon for licensed craft producers – until the major producers increase their production to meet the demand. And then, as with any new market in Canada, the market will evolve until there are 3 top players that hold the majority of the market share. Think of the mobile phone industry, the internet service industry, the beer industry…each have 3 top players that control the mainstream market.

But, all is not lost. Micro producers can still succeed and thrive in the long run if they have a brand that sets them apart.

Building a solid brand means investing not only in brand image, but in ensuring that brands are, and stay, unique. That’s what intellectual property protection is all about – ensuring and insuring uniqueness.

It’s true what they say – you get out what you put in. In order to thrive in the long run, craft producers need to invest now in the protection of their brand identity. Consideration needs to be given to the availability and uniqueness of a company name, product names, and logos. Knowing whether a brand is strong and more importantly, whether it can be legally used and registered, is invaluable information early in the development process. Once a company has decided on a brand, steps need to be taken to ensure that the broadest ability to protect that brand can be maintained and to keep competitors from coming too close to it – including logos, the look and feel of the brand, and its messaging.

It is early days for the new legal landscape, and the rules surrounding packaging have not yet been fully fleshed out. Some have speculated that plain packaging might be in the works. So how can craft producers protect their brands if they don’t know what the rules will be?

First, a look at what we do know: the Cannabis Act will prohibit “any promotion, packaging and labeling of cannabis that could be appealing to young persons or encourage its consumption.” This includes a prohibition on testimonials, endorsements, depictions of persons, characters or animals, and any packaging that associates the cannabis with emotions or a way of life, such as one that “includes glamour, recreation, excitement, vitality, risk, or daring.” That’s a lot of no-nos.

Limiting the branding field in this way means that cannabis producers are going to need to be creative, but also means that getting in early while the field is still fairly open will be instrumental to the long-term success of a brand. Getting in early could mean filing trademark applications for multiple brands, and ultimately pursuing only those that follow the rules, once they are announced. It could also mean monitoring the marketplace for what competitors are doing.

Now is the time to start thinking about how your brand will set you apart from your competitors, including those who will ultimately be the “big 3”.