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15 June 2021Plant VarietiesAlex Baldwin

Cannabis firm asks court to consider new evidence in TM suit

A cannabis company has asked a district court to reconsider its summary judgment motion in a lawsuit over the trademark ‘Kiva’ in light of new evidence.

In the motion to reconsider published on June 11, cannabis confectionary company Kiva Brands Inc (KBI) submitted new evidence to support its claims that wellness company Kiva Health Brands (KHB) knew about its products for years prior to filing a lawsuit against them.

KHB and KBI have been locked in a trademark infringement dispute since September 2018, when KHB filed a complaint with the The US District Court for the Northern District of California alleging that the KBI had infringed on its marks.

KBI filed a motion for summary judgment for the lawsuit in 2019, in which it employed a laches defence—claiming that there was an unreasonable delay in the time between KHB becoming aware of KBI’s products and filing the lawsuit. The court denied the motion in February 2020.

Now, the court has been asked to reconsider in light of new evidence alleging that KHB knew about KBI’s CBD ‘Kiva’ chocolate as far back as January 2014, more than four years prior to filing the lawsuit in September 2018.

KBI cites a privilege (communications) log that showed that KHB’s CEO Tchad Henderson had received “legal advice relating to a website selling Kiva Chocolate bars” in 2014. It argues that this discussion has to be related to KBI as Henderson himself admitted that he was “unaware of any Kiva chocolate bar besides the one sold by KBI and its predecessor Indica” in proceedings.

According to KBI, Henderson had initially stated in a preliminary injunction that he first heard about KBI in 2015.

“Based on these new material facts, among others discussed below, all of which have emerged after the court’s order denying KBI’s summary judgment motion, there is no longer any material factual dispute that KHB knew about its potential trademark infringement cause of action against KBI by no later than April 2014,” said KBI.

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Plant Varieties
10 June 2021   Companies looking to enter the booming cannabis industry should “cast a wider net” when registering trademarks, according to a virtual panel discussion.
Europe
7 February 2020   The UK Intellectual Property Office has blocked Canadian brand Vivo Cannabis from registering ‘Lumina’ as a trademark, after an opposition from an Italian pharmaceutical company.
Medtech
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More on this story

Plant Varieties
10 June 2021   Companies looking to enter the booming cannabis industry should “cast a wider net” when registering trademarks, according to a virtual panel discussion.
Europe
7 February 2020   The UK Intellectual Property Office has blocked Canadian brand Vivo Cannabis from registering ‘Lumina’ as a trademark, after an opposition from an Italian pharmaceutical company.
Medtech
20 July 2021   A Cannabis industry event company has filed a counterclaim suit to invalidate trademarks held by a competitor, who has accused them of unfair competition.