Pro

Is Cookies’ Batman collab legal? Depends who you ask

By Alex Halperin
Jun 16, 2022
story-image
A banner advertising the Cookies/ DC Batman collaboration from the web site of skatewear retailer Mainland

“Gotham is getting a lot louder,” rapper and cannabis mogul Berner posted to his nearly 2M Instagram followers in March. “Cookies x DC Comics Batman collection dropping Saturday at both Cookies { Haight st } and Cookies { Melrose } and Monday online! BATMAN and all related characters and elements ©&TM DC. (S22).”

On drop day, Berner posted again, “The fucking {Batmobile} pulled up to Cookies Melrose.

The posts can be seen as celebrating a major breakthrough for Cookies, which Business Insider recently called the first $1B weed brand, and the cannabis industry as a whole. DC Comics had apparently trusted a cannabis business with Batman, a very valuable piece of intellectual property.

But that wasn’t exactly what had happened. Batman, Joker and other characters had been licensed to Cookies SF, a clothing company legally distinct from the Cookies cannabis company.

The Batmobile parked in front of the Cookies (SF) clothing store on Melrose Ave. in Los Angeles where T-shirts, hoodies and other Batman/Cookies co-branded merch had gone on sale.  A Cookies dispensary with the same street address has a separate entrance a few doors down. On Haight St., in San Francisco, the Cookies clothing store and Berner’s on Haight dispensary are a few blocks apart.

  • Soon the apparel and skateboards would also be available online and at streetwear shops like Mainland Skate & Surf and teen-friendly Zumiez. (Neither returned requests for comment.)
  • In a podcast interview, Berner, who’s given name is Gilbert Milam Jr., said his clothing company had sales between $50M and $55M in 2021, up from $32M the previous year. “It feels great,” Berner said, and he’s nowhere near done. The next clothing store has been announced for Herald Square in Manhattan, near Macy’s.      

“Charting new territory”

The Cookies/Batman deal is noteworthy for the caretakers of a cartoon character letting it anywhere near the plant. It’s noteworthy in the other direction as well: Most cannabis companies stay away from anything that might get them criticized for kid-friendly advertising.

“I think it’s really interesting what [Cookies is] doing,” said Shabnam Malek, a partner at SF-based IP law firm Brand and Branch. “Cookies is pushing the envelope, that’s what the whole sector does,”  What’s different is that most companies believe that of all the ways to push it, anything close to kids offers the worst ratio of risk to reward.  

Asked about the legality of the Batman clothing, a representative for the Cookies cannabis company wrote “Cookies HQ did not collaborate with or enter into any agreement with the owner of the Batman IP…Cookies SF, LLC, which is in the business of producing and selling clothing and other merchandise, received a license to use the Batman IP on a clothing capsule from the owner of those marks.”

“Cookies is charting new territory and what they’re doing may help other companies navigate this,” Malek said.

“Definitely a little cute”

Many legal states, including California, prohibit cannabis marketing that appeals to children. Proposed rules (p. 69-70) from the state Department of Cannabis Control would specifically ban cartoons as well as images, characters and phrases “popularly used” to market to children.  

In states with laws prohibiting cannabis marketing that appeals to kids, “There is no question that this merchandise is in violation of such regulations,” according to SF-based trademark lawyer Mary Shapiro.

  • “Even if there is a separation between Cookies and Cookies SF, it is disingenuous to not acknowledge that the Cookies brand is broadly recognized as a cannabis brand,” Shapiro wrote.
  • Cookies promises quality cannabis and the Batman clothing, “leverages that brand goodwill.”

Other lawyers thought the company had a little more wiggle room:

  • Oregon-based intellectual property attorney Sean Clancy called the Cookies/Batman partnership “definitely a little cute and skirting the line at least. Whether it’s illegal is probably a question of who’s asking.”

In general, not specific to Cookies, California-focused IP attorney Luke Zimmerman, wrote that he would “never recommend” a cannabis brand use a trademark that is overtly appealing to children. 

  • “If you are engaging in marketing that furthers the ‘cannabis companies are targeting children’ narrative you are working against yourself and the betterment of the cannabis industry,” he wrote.
  • Zimmerman also anticipates that when federal legalization arrives, the feds will take a much harder line on brands that might appeal to kids. “I recommend companies don’t engage in marketing that might remind them of Joe Camel or Spuds Mackenzie,” he wrote.

Risk mitigation

The lawyers generally agreed that any cannabis marketing that might be perceived as appealing to kids creates risk for a cannabis brand. In practice, it’s largely the state cannabis regulators who determine if those risks become problems.

As it is, with most brands keeping a wide berth, marketing to kids has not generally been an enforcement focus for regulators and their views aren’t clear.

  • None of the agencies contacted would comment directly on the Cookies x Batman partnership. (I plan to discuss their responses in a separate story.)

To mitigate the risk, Malek suggested that the Cookies companies might want to avoid “comingling the marketing or advertising or social media presence” of the cannabis and clothing brands. 

  • If the Cookies companies received similar advice from their attorneys, they have followed it selectively. While I didn’t find any evidence of the Batman clothing being sold at a Cookies dispensary or online cannabis platform, the brands social media feeds often reference the others’ products.  
  • On Berner’s Instagram feed, Cookies clothing and weed both figure prominently. His bio identifies him as CEO of Cookies without distinguishing between the cannabis and clothing companies.

Another potential insulator for the Cookies cannabis brand is that for many, if not all, of its roughly 50 dispensaries, it does not own the cannabis license. In these cases, the license owners apparently license Cookies’ brand IP.

  • The strategy has helped the brand to “blitzscale” across multiple states and open in Toronto and Israel. London, Vienna and Bangkok are also in the works.

Beyond risk concerns, Malek said that the Cookies x Batman promotion raises an “existential question” for cannabis as it moves closer to the mainstream economy: Does selling cannabis limit what else a company can do?

  • “”Maybe we are saying that if it involves selling to kids at some point you have to pick between apparel and cannabis,” she wrote.

Some of the lawyers wondered why DC Comics partnered with a cannabis-adjacent brand. While the deal might be successful, “I can’t imagine what DC Comics was thinking,” Shapiro said.

When representing a well known property in a branding deal, “I want to know why they’re doing it, what they’re trying to accomplish, who they’re trying to reach,” attorney Clancy said. 

  • One risk, for example, is that a major retailer would be put off by the Cookies x Batman partnership and pull other Batman products.
  • DC Comics didn’t respond to requests for comment.

“I hate the name”

Cookies, which shares its name with a sweet treat, has previously been criticized for its potential appeal to kids.

Last year, one of San Diego’s planning commissioners, James Whalen, told the San Diego Union Tribune, “I hate the name…”I think it’s disingenuous to say it’s not attractive to young people.” He still voted with his colleagues to approve the dispensary in question, Cookies’ third in the city.

  • Whalen also noted that the city had approved a previous Cookies dispensary under a different name before it which was later switched to Cookies.
  • Other local critics had said the company’s playful font and light blue coloring were too kid-friendly.
  • A Cookies executive denied targeting kids and said the color was chosen for its calming effect. She also noted that it was virtually impossible for licensed businesses to sell to minors.

Cookies has a sativa-focused sister brand called Lemonnade.