(CN) - The maker of Newport cigarettes won a trademark suit and attorneys' fees against two brothers who sell a legal psychoactive drug under the brand "Newprot."
Spice is a form of synthetic drug that is legally marketed in Virginia as herbal incense. It produces effects similar to that of cannabis because it is made from spraying a THC-like synthetic chemical onto dried herbs and flowers. It can be smoked like marijuana, but it is not detectable in drug tests for cannabis.
The Drug Enforcement Administration has declared several synthetic ingredients illegal, but the creative labels of herbal incense, potpourri or bath salts make the industry a difficult one to crack. The American Association of Poison Control Centers has reported a surge in the number people sickened by such drugs.
Majdi and Mohommad Abujamous advertised and sold spice labeled as "Newprot" at their three Tobacco Zone stores in Richmond, Va. The product was sold in pouches that mimicked Newport cigarette packaging.
Newport cigarettes, a product of the Lorillard Tobacco, are the second-best-selling cigarette brand in the United States, with 12 percent of the market.
U.S. District Judge John Gibney Jr. found last week that the Abujamouses acted in bad faith and their product infringed on Lorillard's trademark.
"Only minor, trivial differences exist between the instant marks such that they are virtually indistinguishable," Gibney wrote.
"Both the parties' marks are also used in connection with smoking products and sold in similar channels of commerce," he added. "While Newprot is not a cigarette (and may or may not qualify as synthetic marijuana), it is a smoking product."
Despite their familiarity with the Newport brand, the Abujamouses "still chose to trade upon the goodwill and prestige Lorillard had established in Newport by advertising, distributing, and selling their product under a virtually identical guise," according to the court.
Lorillard can collect attorneys' fees because the infringement was deliberate, Gibney wrote, noting that Mohommad Abujamous admitted the similarity between Newport and Newprot's packaging.
"These were not acts of negligence, but rather deliberate decisions to trade on the popularity and widespread recognition of Lorillard's established brand," the ruling states. "The evidence in this case is clear and convincing that the defendants deliberately used the Newprot mark to infringe the plaintiffs' mark."
By LORRAINE BAILEY
Monday, August 13, 2012