Dab Wars: Puffco Sues KandyPens for Instagram “Libel”

By Hilary Corrigan
Jul 24, 2020

Vaporizer maker Puff Corporation (Puffco) has sued competitor KandyPens, alleging the defendant uses Instagram for “false advertising” and “deceptive trade practices.” 

According to the complaint, KandyPens ran Instagram accounts “puffcolawsuit,” and “puffco.lawsuit” and the hashtag “#puffcolawsuit” to make disparaging claims about Puffco. The puffcolawsuit account appears to have been taken down. The puffco.lawsuit account is up but doesn’t have any posts. (Read the complaint here.)

Puffco, which makes the popular high-end Puffco Peak dab rig, filed the lawsuit Wednesday in Delaware’s U.S. District Court. Both companies are Delaware corporations, operate from California and make, advertise, distribute and sell electronic vaporizers throughout the U.S.

Puffco also claims KandyPens orchestrated the filing of a class-action lawsuit against Puffco in Arizona federal court last year, through a plaintiff named Jacob Anderson, affiliated with the company. That case alleged Puffco Peak vaporizers were defective—with battery units failing to charge correctly, or atomizers that break quickly. It also accused Puffco of fraud and of not honoring warranties.

Puffco’s lawsuit this week called the activity on Instagram a form of “trade libel.” KandyPens did not respond to requests for comment.

‘The R.O.G.’

The 2019 lawsuit against Puffco was dismissed, according to Puffco’s complaint. Puffco had challenged the suit’s jurisdiction and failure to state a relief claim, after which the plaintiffs dropped the case.

Since then, the suit says, the class action plaintiffs have not refiled their claims and no other class action lawsuits are pending against Puffco. However, Puffco says KandyPens continues to use the lawsuit hashtag.

“KandyPens’ postings make the literally false and disparaging assertion that there is a class action lawsuit pending against Puffco when there is not.” Additionally, the suit says KandyPens does not disclose that it published the Instagram pages and hashtag, instead making it appear the attorneys representing plaintiffs in the class action suit run them when “a Puffco competitor is behind it all.”

Puffco also claims KandyPens CEO Graham Gibson has shown a pattern of unfair competitive practices. The suit cites a Federal Trade Commission (FTC) lawsuit against him over false advertising that he settled in 2012. According to Puffco, that case involved charging customers for free trials and Gibson saying Oprah Winfrey and Rachael Ray had endorsed his products when they hadn’t. It says Gibson settled the case by agreeing to pay the FTC $1.5M.

Puffco also claims KandyPens copied a Puffco vape pen with a “knock-off” product, naming it “The R.O.G.,” after Puffco founder and CEO Roger Volodarsky and using Volodarsky’s likeness in social media posts. According to the suit, KandyPens also returned disassembled Puffco products to Puffco with a note from Gibson on his business card, saying “Thanks for the inspiration pal!”

Puffco argues that KandyPens’ actions have caused “irreparable harm” to Puffco’s reputation, hurt its ability to market its products and cost it sales and profits. The company seeks a jury trial, unspecified monetary damages, plus legal and advertising costs, and a stop to KandyPens’ actions.

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