High Times threatens Cannabis Culture with twin lawsuits

The attorney for High Times magazine has threatened legal action against Cannabis Culture.
Michael Kennedy, a New York attorney with a decades-long connection to High Times and its parent, the Trans-High Corporation (THC), sent two unpleasant letters to Cannabis Culture in late 2001.

Kennedy’s first letter accused Cannabis Culture of maliciously “lying” about negative effects of last year’s US terror attacks in an online article about cannabis tourism and the Cannabis Cup.

The article contained information similar to reports in mainstream media ? that Americans were afraid to fly in airplanes after the attacks, and that their fears had caused cancellations at events along with a loss of tourist revenue for many travel destinations.

According to CC writer Pete Brady, who authored the original online article and a follow-up update about the Cup, “My first article accurately reported what I was hearing from insiders in Amsterdam. My second article reported exactly what a Dutch Cannabis Cup representative told me.”

“I had no malicious intent in reporting what I reported,” Brady continued. “I had been trying to contact the Cup rep, but he was apparently out of the country, so I had to file the article on deadline based on what I heard from other credible people. When I finally reached him, he told me the Cup was going forward, and I dutifully reported that.”

An attorney who examined both articles for Cannabis Culture said unequivocally that Brady’s reporting appeared to be fair and accurate, and that Kennedy’s claims and threats were a “baseless and troubling attempt to interfere with Brady’s first amendment rights as a journalist.”

Tradeshark

Kennedy’s second letter, received a short time later, threatened civil and “criminal” prosecution because a different article used the term “Cannabis Cup,” to describe an event in Australia (CC#34, Down under the influence), which Kennedy said was a trademarked phrase.

Kennedy’s complaint about trademark infringement troubled Cannabis Culture attorneys and staff alike.

Although Kennedy asserted in his letter that CC had been warned “repeatedly” about unauthorized use of the words “Cannabis Cup,” nobody at CC can remember being notified by Kennedy that the term was private property.

“I was writing about the Nimbin Mardi Grass and Australian Cannabis Cup,” explained CC author Marijuana Man. “That’s what the Australians call their own event. The Nimbin Cup is a super party and cannabis competition that was way more fun for me than the High Times Cup in Amsterdam.”

The organizers of the Nimbin Cup claim they have never received a complaint from High Times or Michael Kennedy about the name of their event. However, Alain Berthiaume, organizer of Quebec’s annual pot competition, says he received a letter from Kennedy that caused him to change the name of his Montreal event from “Quebec Cannabis Cup” to “Quebec Cannabis and Hashish Cup.”

“Doing this didn’t really matter to me,” said Berthiaume, “we got two other categories for the event! We are not going to argue over some name. Waste of time, waste of effort!”

According to legal experts familiar with US copyright and trademark law, restrictions on media use of trademarked names usually applies only to products, not to services or situations like highly-publicized entertainment events.

“The attorney told me that there wasn’t any copyright violation,” said Brady, who interviewed legal eagles after showing them Kennedy’s letters. “The lawyer said Kennedy was making what he called a ?baseless claim on a non-applicable point of law merely to intimidate a business competitor.'”

Attrition tactics

If Kennedy indeed uses threats and letters alleging trademark violations to intimidate competitors, it appears that the practice works.

In 1996, Kennedy launched a legal battle against Matthew Huijgen, a cannabis activist and owner of HempWorld, Cannabis Candy and other projects.

Kennedy used legal tactics to delay Huijgen’s trademark application for three years, claiming that the name HempWorld was “confusingly similar” to Planet Hemp, the name of a business owned by THC. After two years a settlement offer was made by Kennedy, but Huijgen told Cannabis Culture he decided not to accept the offer, which he claims had “all kinds of limitations” on using the name and also included a payment to THC. One year after this offer and about $40,000 later, Huijgen managed to retain the right to trademark the HempWorld name.

Meanwhile, the Planet Hemp trademark threat was also used against activist Chris Cooney, an importer of Nepalese hemp products who claims that he filed a trademark application for the name Planet Hemp in mid-1995.

“In 1996 I received their threatening form letter [from Kennedy],” Cooney told Cannabis Culture. “They actually tried to file in 1996 and were turned down. They filed a dispute toward my filing and were able to prolong all this for years now, to my dismay and outrageous costly misfortune. Those with the deep pockets appear to be able to win thru attrition simply because the small guy cannot afford such exorbitant defense fees.

“Due to lack of funds and inability to find pro-hemp legal help I was forced to sign a contract they drafted. I retained rights to goods and can market under the name, produce a catalog for goods only, but conceded that they may call their web site, store and catalog Planet Hemp.”

Members of the international cannabis movement have also repeatedly asked Cannabis Culture to report on other instances of heavyhanded or allegedly unethical behavior by Kennedy.

In late 2000, for example, an arbitrator ruled that Trans-High Corporaton had to pay $180,000 to Hans, creator of the Sea of Green books and video, for money that High Times owed from the sale of Hans’ products (CC#30, High Times loses legal challenge). The arbitrator’s ruling was the culmination of over two years of delays and legal wrangling, during which Hans and his family became homeless while waiting for money that High Times owed him.

Hans claims that Kennedy’s staff even threatened to get him busted for the grow-ops he was using to produce a second Sea of Green video. Hans also claims that he still has not been paid the full amount that the arbitrator ordered.

Kennedy and senior High Times staff refused to respond on the record to our questions about any of these allegations and lawsuits.

Final questions

Cannabis Culture has not heard from Michael Kennedy since he sent the two threatening letters, but CC reporter Pete Brady has a standing offer to Kennedy, requesting that Kennedy allow Brady to interview him.

“Michael Kennedy has been around since the beginning of the counterculture,” Brady said. “He was there in the early days of High Times when it was still known for hardcore provocative journalism, before it became most known for ads selling harmful fake marijuana, hashish and ecstasy to kids and unscrupulous dealers. Kennedy is a powerful, talented, fascinating man who has seen it all. I’d love to question him.”

Would Brady dare to ask about Kennedy’s history of attacking other members of the pot culture?

“I don’t know if I’d ask him about that,” Brady said, “but I would remind him that I began my career with High Times and always hoped that High Times would stay focused on marijuana legalization like CC is. I’d point out that his letters threaten civil and criminal penalties, which are the tools of drug warriors, not pot people. I’d ask him to use his formidable legal talents filing lawsuits only against drug warriors, not against people whose sole mission is to help humans retain the right and the ability to grow and use marijuana.”

Deja Sue

This isn’t the first time that the Cannabis Culture crew and friends have been threatened with lawsuits.

In October 1995, BC Hydro threatened Marc Emery with a lawsuit if he continued to sell stickers with the BC Hydro logo and the words “BC Hydroponic.” Emery ignored the letter and the stickers continue to be sold across BC.

Shakedown Street, a hemp store in Ontario, received a letter from McDonald’s Restaurants of Canada in February of 1996, also threatening them with a lawsuit over a sticker.

McDonald’s was concerned about stickers with their trademarked “Golden Arches” and the words “Marijuana, Over 1 Billion Stoned.” They complained that the stickers were “slanderous” and must not be sold.

Shakedown manager Derek Wildfong sent McDonald’s the rest of his stickers, along with a polite note pointing out that “if it wasn’t for the ‘over 1 billion stoned,’ McDonald’s would not have been able to rack up its record breaking fast food sales.”

McDonald’s responded that “your letter was creative and certainly not the usual response that we receive.” The sticker continues to be sold across North America, and McDonald’s has not contacted any of the other stores which carry it.

In January 2001, Kraft Foods sent a letter of complaint to Marc Emery’s Pot-TV operation, citing the “Shake ‘n Bake” series of cooking shows as a violation of “valuable trademark rights.” They demanded that Pot-TV stop using the name.

Pot-TV complied, changing the name of the show to “Shake ‘n Baked.” Yet this was not enough. A few months later a second letter came, complaining that the names were still too similar. This time Emery stood firm. “There is clearly no confusion between our show and their products,” he said. “No one watching Shake ‘n Baked thinks we’re sponsored by Kraft.”

Emery also scoffed at the letter’s assertion that “Kraft is particularly concerned about your misuse of ‘Shake ‘n Bake’ in connection with an illegal drug, because ‘Shake ‘n Bake’ products are often enjoyed by children.”

“Kraft Foods is part of the Philip Morris tobacco empire,” explained Emery. “Their only concern about children is how to get them to smoke tobacco instead of pot.”No further correspondence had been received from Kraft as of January 2002.

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