The two brands slugging it out in court. The prospective dispensaries on the left, the beverages on the right.

For the first time in Massachusetts one cannabis company is suing another over alleged trademark infringement.

“Defendants’ use of HiFive in connection with its dispensary services are directly competitive with Theory Wellness’s cannabis-infused seltzers and gummies and are bound to cause consumers to mistakenly believe that defendants’ services originated from Theory Wellness or are associated with or approved by Theory Wellness,” said the 13-page complaint, filed Mar. 18 in Suffolk Superior Court.

Theory Wellness, which owns the Hi5 brand of drinks and edibles, claimed that Beacon Compassion, a prospective cannabis retail operator, copied their brand when they named their three proposed storefronts HiFive.

[Read the complaint.]

Beacon Compassion plans to open adult use dispensaries in New Bedford, Framingham, and the Boston neighborhood of West Roxbury, this year. The complaint claims that those locations are 20-70 miles away from Theory Wellness’s planned storefront dedicated to its cannabis-infused beverage, called “Hi5.”

“Defendants’ goods and services overlap and directly compete with the goods and services offered by Theory Wellness, especially considering both are in the cannabis space provided in the Commonwealth of Massachusetts,” said the complaint.

Beacon Compassion currently has a trademark application on file with the United State Patents and Trademark Office for HiFive, according to the complaint. The trademark application, and in turn the complaint, describes a line of products that may or may not be infused with CBD, while stressing that the products would not include cannabis or cannabis byproducts.

Current federal policy bars the issuance of any trademarks intended to sell an illegal product, such as cannabis.

Theory Wellness registered its Hi5 brand in the Massachusetts Trademark Office, which is likely why the case was filed at the state level rather than in federal court.

“Defendants’ past, present, and future use of HiFive is likely to cause confusion, mistake, and deception of consumers, suppliers, distributors, and others as to source, sponsorship, or affiliation of defendants’ goods and services,” said the complaint.

Previous trademark lawsuits in the state have come from non-cannabis companies and individuals, such as when lumber company Boise Cascade sued vertically-integrated cannabis operators New England Treatment Access over similarities between both companies’ logo. That case was eventually settled out of court.

Actor Sacha Baron Cohen sued Solar Therapeutics last summer over the company’s use of Cohen’s character Borat on a billboard promoting their storefront. That case remains in the pretrial phase.

Theory Wellness is represented by John Strand of Wolf, Greenfield & Sacks. As of this writing, Beacon Compassion has yet to file a response or announce legal representation.

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Zack cut his journalistic teeth covering high school sports in the south before spending a decade covering local government, politics and the courts in the Boston, Massachusetts area. He's previously written...