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THE LEGAL BATTLE BETWEEN ‘THE TOKING DEAD’ AND ‘THE WALKING DEAD’ IS VERY MUCH ALIVE

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For two years, Jeff Homan has found himself in a draining reenactment of the age-old tale of David vs. Goliath. Except replace David with the cannabis-loving zombies that populate his comic series, The Toking Dead, and Goliath with the multimillion dollar franchise, The Walking Dead.

 

Since filing, and later being approved by the United States Patent and Trademark Office, for a trademark in 2017, Homan and his business partner, Benjamin Bartlett, have been entangled in a legal battle against Robert Kirkman, creator of The Walking Dead comics, and AMC, the producer and distributor of its TV show spin-off. 

 

A notice of opposition filed in June of last year—just one week after the duo’s trademark was published—claimed that TTD’s similarities to TWD could create confusion among consumers and diminish the uniqueness of their brand, legally known as dilution. However, Homan believes the opposition has no grounds, citing TWD’s name structure and focus on zombies as too general to justify legal action.

 

“They claimed that we are trying to ride coattails, even though our storyline is completely different and cannabis-based,” Homan said. He explained that his comic doesn’t just revolve around survivors of a zombie apocalypse. It also focuses on the benefits of marijuana. 

 

In their premiere issue, cannabis was used as a way to relieve stress and, at one point, help soothe the pain of a zombie bite. The opening page also features a list of resources concerning medicinal marijuana, drug addiction, and suicide.

 

 

Homan and Bartlett originally planned on using TTD to create pro-cannabis products—think T-shirts and mugs—but wanted to find a way to inform consumers in a fun and visual way.

 

“There are so many good things that can come out of [cannabis],” Homan said. “So we decided to do the comic so that it would educate people and maybe open their eyes a little bit and help break the stigma of what cannabis really is.”

 

He further explained, “There’s so much information out there about [cannabis], but people don’t read books about it. They’re just too dry.” 

 

Their efforts have always been more about advocacy than making money. Issues sell for $5 but cost $3 to print. Artwork for each issue can also shoot into the thousands, making it difficult to generate a profit. It’s a sacrifice they’re both willing to make; at the same time, working on TTD, maintaining day jobs, and navigating complicated legal jargon has made their lives stressful. A losing verdict means their years of hard work will go down the drain, as they’d need to cease developing the TTD brand. 

 

If everything goes according to the court’s prescribed timeline, their trademark’s fate will be decided by late 2020. 

 

“We wanted to get into the cannabis industry, but we didn’t want to be a part of the cannabis industry,” Homan said. “This is what we decided to do in our effort to help the entire cannabis community come together.”

 

To help grow their brand, Homan and Bartlett have tabled at various cannabis conventions and shows in New England. Since day one, they say their primary audience hasn’t been the comic community, but instead cannabis consumers—another aspect of TTD that Homan believes separates his creation from the reefer-less zombies on AMC. 

 

The looming threat of AMC and Kirkman hasn’t stopped the duo from planning future issues. Issue number two is close to being released, while the following four have already been written. It just comes down to whether or not they will see the light of day.

 

“It’s the big guy vs the little guy,” Homan said.

BRIAN CHOQUET

BRIAN CHOQUET