Puffco recently settled a lawsuit with longtime competitor Kandypens over the Oura’s resemblance to the Puffco Peak. While the exact specifics of the settlement remain confidential, we do know that KandyPens has agreed to no longer manufacture or sell the Oura electronic vaporizer rig.
The mudslinging between the two makers of concentrate vaporizers started in 2018, when a group of people claiming to be Puffco customers filed a frivolous class action suit against Puffco in Arizona over quality control problems caused by faulty atomizers in the first Puffco Peak. Even after the suit against Puffco was dismissed and found to have been instigated in part by Kandypens, Kandypens continued on with the PR smear campaign through official company channels, something which Puffco used as ammo in its own suit against Kandypens.
Soon after that, Puffco went on the offensive and sued Kandypens for copying the Peak’s trade dress. Puffco claimed the Oura too closely copied the Peak design. Amongst other things the complaint lodged by Puffco alleges Kandypens CEO Graham Gibson purchased Puffco products and returned them disassembled with a hand written note saying “Thanks for the inspiration”
While it seems this was a heated bad blood rivalry between Kandypen’s Graham Gibson and Puffco CEO Roger Volodarsky, interestingly enough, Puffco is not done. Puffco has now turned its sites to SHO Products, the parent company of Focus V, makers of the OG Carta and the new Carta 2 Vaporizer. The case is based on the same claims that Puffco made against Kandypens, which is that the design of the Carta by Focus V is a clear copy of the Peak by Puffco.
Oddly enough, the two cases are not the same, and for the following reasons, SHO products and their Carta and newly released Carta 2 Vaporizer should fare much better than the Kandypens Oura.
Puffco is alleging design patents and not direct copyright infringement. In this case, the product must have acquired secondary meaning. Think of a bottle of Tide detergent or the McDonald’s Golden Arches.
The argument is easily made: vaporizers have not evolved to that level of notoriety, and even if they had, one could argue the dimensions, color patterns, buttons, and internal functions of the Carta and Carta 2 are different enough from the Puffco Peak and Peak Pro that they do not qualify.
Legal experts would say you cannot copy the dimensions, signature orange color, blue cap, and text font of Tide detergent. However, you also cannot go after competitors for using a similar-shaped bottle. Going down the rabbit hole on all the different vaporizer models, there are far too many that fit the bill for being similar, due to the breadth of technology.
Adding to the complexity, the Focus V Carta 2 and the new Intelli-Core Atomizer have patents of their own.
The time this will take to play out is another plus for SHO products in the newest suit. Puffco brought suit against Kandypens as the plaintiff in June of 2020, and the settlement was not reached until April 2022. In the grand scheme of corporate legal proceedings, two years is a very short time. However, Puff Corp. v. Kandypens could have continued longer.
The Puffco/Kandypens settlement ended in settlement largely due to Kandypens no longer wanting to continue its legal battle contesting Puffco’s patent. The Kandypens Oura saw the bulk of its sales in 2019–2021. In mid-2022, at the time of the settlement, the Oura vaporizer was reaching the end of its product life cycle and becoming a legacy vaporizer. The legal fees didn’t make sense even if Kandypens could have won, so the smarter business decision was to settle. KandyPens has a large array of other newer and better-selling vaporizers. KandyPens also pumps out new vaporizers all the time while retiring older models.
Focus, on the other hand, just released their new Carta 2 vaporizer to much greater acclaim than the Kandypens Oura. Parent company SHO Products (a cannabis conglomerate) has deeper pockets and more recognizable investors who can fight this longer and have a more vested interest in doing so.
Puffco, on the other hand, may see that the electronic dab rig vaporizer market is evolving and that more and more competition is entering the space. Bringing suit against every new entrant could be a self-inflicted gunshot wound, with money and resources going to slow down a competitor while new ones pop up like a game of “whack a mole.” On the other hand, it could serve as a warning to others thinking of treading on established ground to be ready for a fight.
Puffco just released their new device, dubbed the Puffco Proxy.The device has very much caught the attention of the cannabis community. Being the innovators who brought forth the standard electronic rig design that has seen countless imitators is a testament to Puffco’s innovation. innovation, which Puffco appears to have nailed again.
While you can be certain copycats will again emerge, when you have Puffco’s brand recognition, are first to market, and develop the best products to boot, others will want a piece of the action.
It’s not up for us to say what is and what is not copyright and if going after copycats – both legitimately or as a means to slow down a competitor – is a good use of resources. It does appear though that Puffco’s next legal battle with SHO products will be a harder fought one than the previous vs.Kandypens. Let’s tune back in a few months to see what happens.
