Sex, Drugs & Innovation Law: Regulating the Legality of “Poppers”

This Note examines the current legal landscape around “poppers,” an alkyl nitrite-based inhalant that has a strong association with the LGBTQ+ community as a party and sex drug. Under U.S. law, the sale of poppers for recreational use is clearly illegal, but an unregulated poppers industry has arisen over the last fifty years. Poppers manufacturers have taken advantage of a loophole in the statutory ban by marketing their goods as serving alternative “commercial purposes,” such as room odorizers, leather cleaners, and nail polish removers. Poppers can be bought behind the counter at most sex stores, while governments across the world rarely engage in actual enforcement. To skirt existing government regulations, poppers manufacturers have devised new formulations that are more dangerous. At the same time, the poppers industry has increasingly relied on intellectual property (“IP”) law for protection: U.S. poppers companies like Pac-West have registered around forty poppers-related trademarks. As courts and the USPTO grapple with issues surrounding the validity of poppers trademarks under the unlawful use doctrine, this Note aims to analyze the implications of the current regime of IP protection for criminally banned poppers. Looking at recent developments in the United Kingdom and Australia, this Note recommends legalization and regulation of poppers, rather than just IP protection, as the best way to encourage innovation and protect consumers.

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“McDonalds, Coca-Cola, Target, Rush!” – Charli XCX[1]

“[Poppers] may be the only product that the state allows to be sold on a lie.” – Adam Zmith[2]

Introduction

In the summer of 2023, Troye Sivan, a gay Australian pop singer, released his latest single called “Rush.” When teasing the upcoming song’s release, he posted on his Instagram Story a small innocuous bottle with a bright yellow label and the word RUSH in big red letters with a red lightning bolt zigzagging across it.[3] Throughout the song’s marketing and promotion campaign, the features of the RUSH mark—such as the font, color scheme, and the bottle itself—were often prominently displayed.[4] “Rush” was eventually released as a sexually charged and openly LGBTQ+ dance song. Eventually, videos surfaced of drag queens performing to the song while dressed up as “RUSH” bottles.[5] Mainstream broadcasts like NBC’s Saturday Night Live have even alluded to Troye Sivan and RUSH, saying at the very least that they’re “gay famous.”[6] Clearly, astute listeners in the LGBTQ+ community understood that the song’s title and lyrics referenced the trademark RUSH.

This is not the first time that RUSH has appeared as a signifier in the gay community.[7] In the 1970s, gay magazines advertised RUSH and its sister brands, often juxtaposing the bottles with images of scantily clad hyper-masculine men.[8] In the 1980s, some gay activists argued that RUSH and similar products contributed to AIDS, transforming it into a signifier that was supposedly emblematic of the excesses in the gay community.[9] More recently, Charli XCX, an English singer and songwriter, was filmed holding up a RUSH bottle and yelling “gay rights[!],” which was shared widely on social media. Since then, the singer continues to sign RUSH bottles for her LGBTQ+ fans.[10] RUSH has clearly demonstrated a strong source-identifying function in the LGBTQ+ community. This immediately begs the question: What is RUSH? According to the United States Patent and Trademark Office (“USPTO”), the mark RUSH covers “all-purpose cleaners,” “cleaning preparations,” and “incense.”[11] But why are members of the LGBTQ+ community dancing to songs about cleaners and incense?

In actuality, RUSH is a brand of “poppers,” a recreational party and sex drug traditionally associated with the gay community. The drug amyl nitrite—which poppers were originally composed of—was introduced in the nineteenth century to “ease the pain of angina attacks for people with heart conditions.”[12] They were sold as a prescription drug in thin-walled glass ampules covered by cotton mesh, which would make a “popping sound” when a user crushed the ampule to inhale the fumes of the liquid.[13] The chemicals would relax involuntary muscles and blood vessels, leading to a drop in blood pressure.[14] Although it is unclear when poppers were first used recreationally, they eventually developed a reputation in the gay community for being an aphrodisiac and assisting in anal intercourse.[15] Today, usage continues to grow, with a study finding that over a third of gay men in the United States are estimated to have ever used poppers.[16] Additionally, other groups like straight women, particularly festival-goers and rave attendees, continue to use poppers as a party drug.[17] Meanwhile, the Food and Drug Administration (“FDA”) recently warned against recreational use of poppers as dangerous.[18] Further, the distribution of poppers for recreational use technically remains a federal crime, and[19] some states have laws against recreational consumption.[20]

Poppers exist in a gray area under the law. In 1969, the FDA reversed course from an earlier decision by making amyl nitrites only a prescription drug for angina treatment.[21] In response, poppers companies synthesized alternatives to amyl nitrites, while also marketing their products as  “liquid incense” and other products rather than drugs.[22] In the aftermath, the FDA has been relatively unwilling to regulate poppers.[23] Although selling amyl nitrites for recreational use remains a crime, prosecutions are sporadic.[24] Poppers are still readily available for behind-the-counter purchase at every adult and sex store.[25] They contain labels that explicitly say that these products are not for recreational use, but they continue to be used exclusively for recreational use.

This phenomenon is not limited to the United States: jurisdictions across the world have consistently turned a blind eye to how poppers are actually used in the marketplace. As a result, a global poppers industry has developed. Although there is limited data on the sale of poppers globally, the United States has some of the largest manufacturers and exporters in the industry. At the very least, poppers companies in the United States have ownership over some of the most recognizable brands and trademarks such as RUSH, which is known by LGBTQ+ communities across the world.

The Pac-West Distributing Company (“Pac-West”) is one of the biggest poppers companies in the world and a successor to one of the original poppers corporations. Pac-West owns numerous successful poppers brands (like the aforementioned RUSH) and holds a trademark portfolio of around forty trademarks registered with the USPTO. In the Eastern District of Pennsylvania, Pac-West has been in a years-long dispute with a former manufacturer over trademark infringement, where the judge recently denied a challenge to the validity of Pac-West’s poppers trademarks, while simultaneously acknowledging the presence of federal statutes criminalizing their use.[26] Poppers have been thrust into the limelight, simultaneously revealing that they have silently received intellectual property protection for decades.

The ambiguous legal status of poppers begs two questions: (A) whether intellectual property rights and protections should be extended to poppers whatsoever, or (B) whether the government’s criminalization and refusal to actually regulate poppers is in the public interest. The poppers marks are clearly distinctive with a strong secondary meaning in the LGBTQ+ community that serves a source-identifying function, but this distinctiveness is in relation to goods that they are not registered for and uses that are not currently legal.

In this Note, we (1) give a technical primer, (2) discuss the history of poppers in the United States, (3) investigate global responses to poppers, and (4) explore implications of the current regime and possible reforms, such as legalization and a return of amyl nitrite to pharmacy store shelves. Currently, intellectual property protections remain an uneasy compromise to protect poppers manufacturers so long as they remain in a legal gray zone, subject only to IP-related government regulation. This Note examines whether consumers’ welfare and safety are best protected by the current trademark regime, which is dominated by a few players and lacking regulatory oversight by agencies other than the USPTO.

I. Technical Primer: Alkyl Nitrites as Vasodilators

This technical primer provides (A) a breakdown of the common active ingredients in poppers used globally today, and then (B) an explanation of how poppers provide a “rush” that draws members of the LGBTQ+ community and other populations, such as festivalgoers of all sexual orientations, to recreationally use them.

A.     What Poppers are Made Of (It’s Not Actually Quicksilver[27])

Poppers are typically made with an active ingredient from a class of compounds that are collectively called “alkyl nitrites.”[28]

Within organic chemistry, the term “alkyl” refers to a chain of carbon atoms bonded together with hydrogen atoms that can react with other molecules to form larger compounds with special properties,[29] such as alkyl nitrites. The more carbon atoms, the longer the “alkyl” chain. The longer the chain, the less evaporative—and less inhalable—the poppers become.[30] But very short alkyl chains are more gaseous and therefore less suitable for sale as a liquid. Therefore, poppers have been made with relatively short alkyl chains of five (e.g., “amyl” a.k.a. “pentyl”), four (e.g., “butyl” or “isobutyl”), or most recently, only three (e.g., “propyl” or “isopropyl”) linked carbon atoms.[31]

“Nitrite” refers to a reactive molecule containing a nitrogen atom and two oxygen atoms (NO2-).[32] Nitrite is all around us: in water sources, food sources, and soil.[33] Nitrite is closely related to nitrate (NO3-) and nitrous oxide (NO), especially in the human body. Nitrates reduce to nitrites, which in turn reduce to NO through basic human functions like fighting-off bacterial infections, regulating blood flow throughout the body, and relaxing smooth muscle tissue.[34] Nitrite can react with many different compounds—from metals to organic materials—to form nitrite compounds with distinct properties.[35] Applying this knowledge, chemists—even undergraduate chemists-in-training[36]—can readily make poppers at a lab bench with nitrite salts and alkyl chains.[37]

The characteristics of each of the three major forms of poppers—amyl, isobutyl, and isopropyl—are summarized in this Section.

1.     Amyl Nitrite and Pentyl Nitrite

The five-carbon “amyl nitrite” is effectively synonymous with poppers, though it is not the only chemical form of poppers.[38] Within the five-carbon category of poppers, there is a second, less-commonly used form called “pentyl nitrite”—with similar yet distinct properties from amyl nitrite—that does not share in amyl nitrite’s long history of medicinal use.[39]

Poppers manufacturers commonly—though not most frequently—choose amyl nitrite as the active ingredient in their products in part because amyl nitrite, with its long history of clinical use for angina treatment, is generally regarded as “less harmful to health” than other nitrites.[40] The other chemical forms of poppers have been linked to cancer or permanent vision loss.[41] Amyl nitrite has not yet been shown to have such adverse effects, but inappropriately drinking or overconsuming alkyl nitrites of any kind can lead to negative side effects. This includes temporary skin lesions near repeat-exposure areas, temporary sinus inflammation, or most seriously, a treatable condition called methemoglobinemia (where the nitrites oxidize hemoglobin in the user’s blood and render most of the user’s blood cells incapable of transferring oxygen without treatment).[42]

Separately, amyl nitrite has been indicated for many different special medical purposes separate from treatment of angina or from recreational use as poppers, though most of these uses have primarily been pertinent to hospital settings.[43] Alkyl nitrites’ ability to turn hemoglobin into methemoglobin in normal circumstances is harmful to one’s transfer of oxygen around the body.[44] But this same effect has also made amyl nitrite a great antidote for cyanide or hydrogen sulfide poisoning because both poisonous molecules prefer to react with methemoglobin instead of the vulnerable cellular sites that these poisons otherwise would shut down.[45] In the nineteenth and early twentieth century, in addition to treatment of angina, amyl nitrite was used to treat asthma attacks, though superior treatments have since been invented.[46]

2.     Isobutyl and Butyl Nitrites

The common four-carbon forms of poppers are isobutyl nitrite and butyl nitrite, respectively.[47] These were the first form of nonregulated alkyl nitrites, created after the FDA in 1969 took amyl nitrite off pharmacy store shelves by making it only available as a prescription for chest pain.[48] Isobutyl nitrite and butyl nitrite each contain one less carbon atom than amyl nitrite, which makes the molecule smaller and therefore more volatile and easier to vaporize.[49] This lightness allows for more molecules to be inhaled with one breath in, and each nitrite is more exposed to react with the body’s tissues. A single inhalation of butyl and isobutyl nitrites is generally likely to have a stronger effect than a single inhalation of the original alkyl nitrite discussed in the prior Section, amyl nitrite.[50]

However, the higher strength of butyl and isobutyl nitrites comes with increased adverse effects. At least one cardiologist has remarked that butyl nitrite use could cause someone with an undiscovered aortic valve defect or disease to sustain permanent heart damage, or someone with narrowed arteries to the head to have a stroke.[51] Separately, scientists demonstrated in the early 1980s that butyl nitrites can form cancer-causing compounds called nitrosamines.[52] This formed part of the basis for the federal government to ban the manufacture of butyl and isobutyl nitrites in the Anti-Drug Abuse Act of 1988.[53] In response, the unregulated poppers manufacturers created a new poppers compound: isopropyl nitrite.

3.     Isopropyl and Propyl Nitrites

The three-carbon products isopropyl nitrite and propyl nitrite (but primarily isopropyl nitrite) entered the unregulated poppers market largely in response to the criminalization of the four-carbon butyl nitrite by the U.S. government in 1988.[54] But, being even smaller molecules than butyl nitrites, isopropyl nitrite and propyl nitrite are even easier to vaporize and react with human tissues. These three-carbon products are the most dangerous of the major types of alkyl nitrite poppers products.[55] Since isopropyl nitrite especially has grown in popularity among manufacturers and consumers, doctors are increasingly citing permanent vision loss as a major risk of isopropyl nitrite-based poppers use.[56]

B.     The Mechanism of Poppers’ Rush: Vasodilation

Amyl nitrite was introduced as an inhalant in the 1860s, when at the Edinburgh Royal Infirmary, Dr. Brunton tried to avoid “inconvenient” blood draws to alleviate angina (chest pain) by instead allowing a patient to inhale amyl nitrite.[57] The treatment achieved its desired effect, causing the pain to disappear within minutes, which in turn helped the patient relax to prevent the heart pain from returning.[58] Since then, amyl nitrite inhalant has been available at least as a prescription drug for treatment of angina.[59] But poppers users are not using alkyl nitrites like amyl nitrite to treat angina; they are using alkyl nitrites for recreational purposes.[60]

What unites poppers’ utility for treating angina and recreation among healthy people is vasodilation: the widening of the body’s blood vessels to markedly lower blood pressure.[61] The body’s processing of alkyl nitrites results in the nitrite’s reduction to nitrous oxide, NO, which affects how blood vessels and smooth muscle tissues regulate themselves.[62] Just as increased NO concentration in the blood loosens the blood vessels, this reduced blood pressure and relaxed smooth muscle state tends to loosen the anus’s sphincter, which makes anal intercourse easier.[63] The loosening effect of vasodilation extends further to blood vessels in the brain, which may give the alkyl nitrite user warm sensations, facial flushing, and the feeling of a “rush.”[64]

The “rush” of vasodilation is typically accompanied by a rapid heartbeat, dizziness, and/or feelings similar to fainting due to the drop in blood pressure.[65] The “rush” may also be followed with mild to severe headaches in the minutes after use.[66]

In summary, poppers provide a culturally critical technology for the LGBTQ+ community—to facilitate anal sex—and a temporary head rush to partygoers of all sexual orientations. This makes poppers a persistently popular, though often illicit, drug. But newer poppers compounds, like the four-carbon butyl and three-carbon propyl isomers, present significantly more health risks for use than the 150-year-old, medically recognized five-carbon amyl nitrite. Part II explores the history of the market for these various compounds in greater depth.

II. The Rise of the Modern Poppers Industry

This Section discusses the history of poppers and ongoing controversies, both within the United States and abroad. The rise of the modern poppers industry is a direct result of governments like the United States that are unwilling to administer and enforce blanket bans. Through legal loopholes, many major poppers companies have been able to successfully register their poppers trademarks and receive legal protection. As governments like those in the United Kingdom and Australia have dealt with modern poppers-related disputes, they have been forced to decide whether to keep or change their current legal regimes.

A.     American Poppers: Banned and Protected

In the United States, the government has unevenly regulated poppers, increasingly relying on trademark law as the only area of law that provides protections for poppers manufacturers. However, there are some ongoing disputes in federal court and before the USPTO between different players in popper industry challenging not only the validity of these trademarks but possibly forcing the U.S. government to directly confront this issue.

1.     The Rise of Poppers as Brands

Amyl nitrite specifically maintains a popularity among poppers manufacturers, in part because amyl nitrite inhalants have been known to the medical community and marketed for medicinal purposes for more than 150 years.[67] Since the 1860s,[68] amyl nitrite has been available as a prescription, and even over-the-counter (from 1960 to 1969), although it has only been officially prescribed as a chest pain (angina) treatment or included in cyanide poisoning antidote kits.[69]

In 1960, the FDA lifted the prescription requirements for amyl nitrites.[70] Leading up to and through the sixties, the medical usage of amyl nitrite for angina became disfavored, and the market dried up. However, as poppers became available over-the-counter after 1960, more Americans discovered poppers’ “rush”-like effects, so poppers’ primary use shifted to a recreational party drug.[71] People could go directly to a pharmacist for amyl nitrite with the intention of using the drug recreationally.[72] Amyl nitrites for recreational use had the attention in the 1960s of the drug-maker Burroughs-Wellcome.[73] After the FDA let amyl nitrite sit on pharmacy shelves over-the-counter in 1960, the pharmaceutical industry observed “widespread purchases” of amyl nitrite by ostensibly healthy young people in the years that followed.[74] Burroughs-Wellcome’s conservative leaders asked the FDA that amyl nitrite poppers be taken off store shelves to stop the behavior they perceived as immoral, which led in part to the FDA’s change to prescription-only amyl nitrite in 1969.[75]

With poppers absent from pharmacy store shelves in the 1970s, their demand could only be met by the sale of unregulated chemical products, so non-FDA-approved poppers manufacturing proliferated.[76] A possible combination of patent protection on amyl nitrite for vasodilation by companies such as Revlon[77] and regulatory protection of amyl nitrite as exclusively to be sold for prescription chest pain treatment by the FDA caused amyl nitrites to become disfavored as poppers’ active ingredient. Instead, the unregulated poppers manufacturers of the 1970s decided to avoid manufacturing the five-carbon amyl nitrite and began making poppers out of the four-carbon butyl and isobutyl nitrites.[78]

In fact, these novel nitrites created an opportunity for an illicit poppers industry. One of the major innovations for poppers in the 1970s was getting the product directly to consumers, cutting out both the pharmacist and doctor altogether.[79] This was accomplished by not only concocting new unregulated drugs to skirt government interference but also by marketing directly to gay men with recognizable and striking brands.[80]

To circumvent regulation, interested entrepreneurs concocted different variations of alkyl nitrites that accomplished the same effect as amyl nitrite. In 1971, Clifford Hassing synthesized butyl nitrite in Los Angeles, naming his concoction LOCKER ROOM after its distinctive smell.[81] In 1976, W. Jay Freezer founded Pacific Western Distributing Corporation (“PWD”) in San Francisco and began selling RUSH, synthesizing a poppers formula from isobutyl nitrite.[82] People no longer needed to get amyl nitrite from a pharmacist or a drug dealer, but could buy it at sex and adult stores behind the counter.[83] Anyone, without a prescription, could buy poppers in half-ounce or smaller bottles for around $4 to $10 per bottle.[84] Despite the FDA reversal back to prescription-only amyl nitrite, alkyl nitrite poppers became more accessible than ever before.

In the late 1970s, poppers innovators like Freezer and Hassing led the rise of the commercial poppers marketplace. In Deep Sniff, author Adam Zmith pointed out that PWD was founded in 1976, the same year as other household U.S. brands like Microsoft, Apple, and Starbucks.[85] Freezer invested heavily in advertising his poppers products and had grand plans on mainstreaming poppers. In a 1977 Wall Street Journal article, Freezer boasted about the future of poppers and said that “[i]f Safeway supermarket customers want the product, I don’t see why it couldn’t eventually be sold there.”[86] Furthermore, he boasted about having “retail sales total[ing] some $20 million” and at “least 60% of the total market . . . after only a year in business.”[87] Although these figures may be exaggerated, given Freezer’s colorful personality, they demonstrate the rapid rise of poppers as a thriving unregulated industry.

Poppers companies were successful largely due to their heavy advertising in gay periodicals and their creation of distinct brands. Jack Fristcher, editor-in-chief of Drummer, would go on to state that in gay magazines, “[p]opper dealers paid a huge chunk of advertising dollars buying full-page display ads including expensive inside covers and back covers.”[88] These ads had a distinct vibe, featuring “Tom of Finland-esque illustrations of burly, shirtless men pumping gas in suggestive ways.”[89] The advertisements tried to associate their product with the macho masculinity that characterized a dominant strain of gay culture in the 1970s.[90] Poppers were no longer just a generic drug, but were composed of entire brands with a distinct image and connotation with its gay consumers.

In the late twentieth century, the nascent poppers industry faced many obstacles. When the AIDS crisis began, many blamed poppers as a contributing factor and possible cause. Gay activists like John Lauritsen and Hank Wilson argued that long-term usage of poppers weakened gay men’s immune systems, making them more susceptible to “gay” cancer.[91] Freezer would go on to die on March 27th, 1985, from AIDS-related illness.[92] In addition, the government repeatedly sought to outlaw poppers. The Anti-Drug Abuse Act of 1988 outlawed butyl nitrites, the same chemical LOCKER ROOM was composed of.[93] Soon after, the Crime Control Act of 1990 banned isopropyl nitrite and other nitrites.[94] The poppers industry faced an existential crisis, about to disappear as quickly as it had developed.

However, poppers were able to persist by continuing to exist in a gray area of the law. Both the Anti-Drug Abuse Act of 1988 and the Crime Control Act of 1990 had exceptions for non-recreational commercial purposes, defined as “any commercial purpose other than for the production of consumer products containing volatile alkyl nitrites that may be used for inhaling or otherwise introducing volatile alkyl nitrites into the human body for euphoric or physical effects.”[95] These two laws specifically made poppers illegal, but with these exceptions, enforcement proved difficult. Poppers companies could still claim that their products were used for legitimate commercial purposes with the poppers’ labels describing the products as room deodorizers and not for recreational use.[96] Reflecting on this time period, Mary Toro, a U.S. consumer safety regulator, believed that “poppers manufacturers would try to flout the ban, disappear when regulators took notice, then resurface under different names.”[97] The days of Freezer’s blatant advertising may have passed, but poppers already had a foothold in the market and regulators largely continued to look the other way.

At the same time, the FDA has continued to allege that poppers broadly remain a harmful class of drugs. In 2021, the FDA released an article about how ingesting or inhaling poppers can cause severe injury or death. The FDA’s article points out how poppers are marketed as other products, such as deodorizers and nail polish remover, and references common brands like RUSH.[98] On the FDA’s official X page, formerly known as Twitter, they claimed that people are consuming poppers that resemble and are supposedly often mistaken for energy shots. The agency begins its post with the line, “A single mistake can prove fatal.”[99] The FDA’s current concern is mainly that the packaging and size of poppers could be mistaken for energy drinks, while no one should ever drink poppers. There has been some pushback against the FDA’s claim, since many health observers have been skeptical about how often consumers confuse energy drinks with poppers, which often smell like nail polish remover.[100] Regardless, the FDA has clearly been aware of poppers and believes they are dangerous, even if they are unwilling to take any further action.

In the United States, poppers are explicitly banned under the law. Poppers companies have been extremely creative by synthesizing different formulas and crafting clever labeling. Meanwhile, regulators have proven reluctant to truly enforce the law against these companies. This is not to minimize the fact that poppers are still very much illegal because their use is largely for consumption through inhalation. As one poppers insider described the industry, “I think everybody knew but they knew it wasn’t illegal like go-to-jail illegal . . . It was illegal-lite . . . slap-on-your-hand illegal.”[101] Currently, there remains an uneasy truce where the government looks the other way as long as poppers do not explicitly advertise themselves for recreational use.

2.     The USPTO & Poppers

As the poppers industry developed, these companies have sought trademark registration for their poppers brands. In a trademark application, one of the requirements is to fill out a description of goods and services covered for the mark.[102] These poppers brands cannot get a registration for an illegal usage, so they have most commonly been registered as “room odorizers.”[103]

This Section will first look at (a) the laws regarding unlawful use, which bar registration for marks that have no legal use. Then, (b) it will track and analyze the changes in the USPTO’s approval process for poppers trademarks over the last fifty years. Throughout this period, the USPTO has increasingly enabled poppers brands to operate in the marketplace by ultimately granting registration, while simultaneously recognizing the existence of poppers as a recreational drug.

a.     Laws Regarding Unlawful Use

In trademark law, registration may be refused on the grounds that the applied-for mark is not in lawful use in commerce, otherwise known as the unlawful use doctrine.[104] Currently, this often comes up in the marijuana context, which is legal in an increasing number of states for recreational use despite a federal ban.[105] In In re Stanley Bros. Social Enterprises, the Trademark Trial Appeal Board (“TTAB”) affirmed refusal based on unlawful use for marijuana-related products or services.[106] Through this doctrine, the USPTO has refused or canceled thousands of marks based on its internal process that determines whether the mark in question was in violation of federal statute.[107]

However, the USPTO presumes that an applicant’s use of the mark is lawful unless the application record indicates a violation of federal law.[108] Furthermore, the USPTO “may make appropriate inquiry as to compliance with [any other Act of Congress] for the sole purpose of determining lawfulness of the commerce recited in the application.”[109] Essentially, the USPTO’s practice is only holding an unlawful use in commerce when there is either a finding of noncompliance by another government entity (such as a court or government agency) or when there is a per se violation of a statute regulating the sale of a party’s goods.[110]

As actually used, poppers are clearly illegal. However, the registration of poppers trademarks is not a per se violation because of the “other commercial uses” exception under the Anti-Drug Abuse Act of 1988 and Omnibus Crime Bill of 1990.[111] Unless courts and government agencies intervene, the USPTO will likely continue its historical practice to not question whether poppers trademarks are unlawful uses of commerce. Poppers should technically be barred from registration under current trademark law, though current and historical practice dictates that as long as applicants avoid registering the marks openly as “poppers” to the USPTO, they are typically granted registration.

b.     Poppers Marks Registration History

Initially, the USPTO easily granted registration to the first poppers brands, seemingly unaware of their illicit recreational use.[112] In 1974, Clifford Hassing submitted the first trademark application for his poppers brand, LOCKER ROOM.[113] In Hassing’s application, he described the mark as covering “LIQUID ROOM ODORIZER.”[114] Since the mark was in commercial use since February of 1970, the USPTO granted registration to LOCKER ROOM. In 1976, PWD filed an application for their poppers brand RUSH, with a class description of “CHEMICAL COMPOSITION SOLD IN AN EASILY OPENABLE CONTAINER AS AN AIR SCENT.”[115] They claimed that their mark had been used in commerce since December 1976 while their mark was also approved for registration. Clearly, the initial strategy was to describe poppers brands as liquid room odorizers to achieve USPTO registration. RUSH continues to be a live and valid trademark, most recently being renewed in 2019.[116] It is interesting to note that Hassing applied for registration around two years after first use in commerce, while PWD sought registration the same year. From the beginning, poppers manufacturers quickly sought out trademark registration to protect their brands.

In the ensuing decade, PWD would continue to successfully register their marks with the USPTO, describing their goods simply as “ROOM ODORIZER.”[117] In 1985, PWD sought registration for their mark BOLT, which would be the last trademark they would file.[118] A possible explanation for the larger gap in poppers registration during the 1980s was the ongoing AIDS crisis and the absorption of PWD by Joseph Miller.[119] By the time the application was initially filed, Freezer had died earlier that year from AIDS.[120] Poppers manufacturers seeking to protect their products seemed to settle on describing their goods in their trademark applications as “room odorizers.”

After Miller bought and absorbed PWD, his company Great Lakes Products Inc. would wait until 1992 to register three poppers brands on the same day: RAM, HARDWARE, and QUICK SILVER.[121] These marks were all supposedly covering goods such as “room odorizers and fresheners.”[122] Tantalizingly, Miller’s trademark application for the aptly named POPR’s in 1998 for “chemical composition, namely an Air Scent” was appealed to the TTAB after the examining attorney’s final refusal, but it was ultimately abandoned.[123] Unfortunately, there is no information on the grounds for refusal, so it is unclear whether the examining attorney realized what was actually being registered. In the early 2000s, Miller would also register POWER PAK PELLET covering “chemical preservatives, namely, desiccants for use in the manufacture of incense” and LOCKER ROOM covering “air fresheners.”[124] Hassings’s trademark LOCKER ROOM had expired in 1986, leaving Miller able to register his own mark.[125] Poppers brands were still periodically being registered from the 1990s to the 2000s, but Miller seemed content to focus on cultivating existing brands.

After Miller’s suicide in 2010, the poppers trademark portfolio changed hands once more, and Arizona-based Grand Canyon Products (“Grand Canyon”) became the new owner.[126] Interestingly, the Trademark Status & Document Retrieval (“TSDR”) database shows that a separate corporation, Sky Ventures, took a security interest in some of Miller’s trademarks, including RUSH, during this corporate transition.[127] State business records show that Sky Ventures was incorporated in 2008 and became inactive shortly after the transfer to Grand Canyon in 2012.[128] The exact relationship between the companies—whether Sky Ventures extended a line of credit or served another purpose—remains unclear. [129] However, this security interest still demonstrates the value of these popper trademarks, including the importance of trademark registration.

Normally, a security interest comes up in the trademark context when a company is restructuring or seeking additional funding. A creditor provides a loan with some property—the trademarks—held in collateral until repayment is paid in full.[130] If the corporation fails to make good on its debt, then the lending company can at least own some portion of the trademark portfolio. For most consumer brands, their trademarks are often just as valuable as any equipment or real estate they own. Despite poppers trademarks’ gray legal status, they can be used as secure enough insurance for extending a loan. Therefore, this means that poppers trademarks were not only properly registered, but they were at least seen by this corporate entity as a valuable company asset that required safeguarding.

In the 2010s, Grand Canyon filed a set of registrations that diverged from the usual poppers goods and services description, leading to push back from the USPTO and forcing them to adopt defensive measures. In 2011, Grand Canyon filed a registration for PWD, referencing the original corporation started by Freezer back in the 1970s.[131] Interestingly, the goods description is quite different and includes both “cosmetic preparations for body care” and “room deodorants and fresheners[.]”[132] It seems that Grand Canyon sought to sell other non-poppers related products under the PWD mark, which makes it unique from the exclusively poppers-related brands. In 2012, Grand Canyon sought to register BOLT, HARDWARE, IRON HORSE, and RAM each as “nail polish remover,” in addition to filing other marks.[133] This batch of trademark applications would be subject to a variety of Office Actions, which meant that Grand Canyon’s lawyers would seemingly have to defend their poppers trademarks for the first time.[134]

Grand Canyon’s BOLT 2012 application, with its new class description of nail polish remover, was one of the first subjected to an Office Action by the USPTO.[135] In its Office Action, the Examining Attorney refused initial registration based on likelihood of confusion between BOLT and BOLT BARBERS for “[s]having products, namely, shaving creams.”[136] The Examining Attorney was worried that there was sufficient overlap between nail polish remover and shaving creams, which would create  consumer confusion and allow Grand Canyon to take advantage of goodwill from the BOLT BARBERS mark.[137] An Office Action is not a final refusal, and registrants will often file responses to overcome the initial denial of registration. In its 2013 Office Action Response (“Response”), Grand Canyon wholly adopted the premise that BOLT was nail polish remover.[138] Based on this assumption that the product was nail polish remover, Grand Canyon advocated that the mark would not cause consumer confusion with BOLT BARBERS.[139]

One of Grand Canyon’s main arguments was that the trademarks cover different goods and services with different consumers. They stated that the registrant’s mark for shaving cream is for “hairy beasts,” while “nail polish remover generally is used more by women than men and very likely not typically by people who would be described as ‘hairy beasts.’”[140] This completely ignores the fact that men, hairy or otherwise, largely used BOLT. Moreover, it leaned heavily on the terms “typically” and “generally,” never affirming or denying that their product may be different from other nail polish removers. There is nothing wrong with this approach, but it is intriguing in retrospect knowing the product’s true purpose. Grand Canyon further argued that “shaving products and nail polish removers are generally sold in different sections of a drug store and different aisles of a supermarket.”[141] Again, this declines to reconcile that this “nail polisher” could not be found at the local drugstore, but instead, at certain sex and adult stores. However, Grand Canyon’s Response proved to be enough for the USPTO to grant BOLT trademark registration the following year.[142]

Meanwhile, Grand Canyon’s 2012 application for RUSH was partially refused based on likelihood of confusion, unable to be registered for nail polish remover.[143] Grand Canyon’s RUSH was rejected because marks like RUSH and MINERAL RUSH were already registered for various cosmetics, including nail polish and nail care preparations.[144] Grand Canyon attempted to argue that those registrations did not cover nail polish remover, but this was ultimately denied. However, they successfully argued that prior registration of their mark disproved likelihood of confusion, extending RUSH to cover room odorizers and air deodorizers.[145] In this case, the power of prior registration allowed an extension of poppers trademarks into similar goods, which slowly expanded the protection these marks received from room odorizers to “fresheners in the nature of air deodorizers.”[146] This is important to note since poppers trademarks have not covered poppers, so they must cover all relevant goods that poppers could conceivably cover.

In a further attempt to avoid registering their actual products, the 2012 round of applications by Grand Canyon shows a shift in poppers trademark registration, in which existing poppers trademarks were filed to cover different categories of goods and services. In many ways, this is an inevitable result of the gray zone that poppers trademarks exist in. After all, poppers trademarks’ goods descriptions have included a range of products from room odorizers to nail polish removers. These different categories of goods might not normally be seen as sufficiently overlapping, which may support a finding of likelihood of confusion and rejection based on other non-poppers-related preexisting marks by the USPTO. However, they could all technically be filed, which could allow an upstart poppers company to legally register their marks and profit from the goodwill of Grand Canyon’s marks. The trademark applications cannot discuss what actual goods they cover, so poppers companies are incentivized in expanding the goods covered by existing poppers trademarks.

During this same period, Grand Canyon also faced opposition not from the USPTO but from other poppers manufacturers, fighting over ownership of a valuable poppers trademark. In 2011, Grand Canyon filed a registration for LOCKER ROOM covering “leather cleaner; nail polish remover.”[147] This was opposed by Lockerroom Marketing,[148] a Canadian-based poppers company, which also sold “leather cleaner” under the LOCKERROOM mark.[149] In its opposition, Lockerroom Marketing said that “isobutyl nitrate is considered by some to be a euphoric sex enhancing inhalant.”[150] This is seemingly the first time that poppers’ recreational usage had been mentioned, bringing it directly to the USPTO’s attention. Ultimately, Grand Canyon would abandon its filing before it got to the merits, but Lockerroom Marketing’s opposition demonstrated how the USPTO first became aware of what goods were actually covered by poppers trademarks and how poppers companies were willing to fight over who owned these valuable trademarks.[151]

At the same time, Lockerroom Marketing began applying for registration in the United States for their own poppers trademarks after having already received registration in Canada, implicating international trademark reciprocity.[152] Lockerroom Marketing owns popular poppers brands like AMSTERDAM, JUNGLE JUICE, and BLUEBOY. In 2012, Lockerroom Marketing first attempted to register their marks as leather cleaners.[153] This introduces an entirely new element to the trademark analysis because there is a different registration process for marks that are already registered abroad in another jurisdiction. Trademark law is somewhat harmonized across the world by the Madrid Protocol, but this is largely beyond the scope of this Note.[154] For our purposes, it should be known that trademarks registered already in other jurisdictions get additional privileges and lower evidentiary bars, which creates odd implications for marks used primarily for illegal use.

In its first wave of applications, the Lockerroom Marketing company overcame a final Office Action for JUNGLE JUICE based on likelihood of confusion grounds in part by getting a consent agreement with the other mark.[155] Ultimately, these applications failed when they never filed a Statement of Use or Intent to Use, which is required to receive registration.[156] Essentially, they did not provide evidence that their mark was being used in commerce or of their plans to use it in commerce. However, they were ultimately able to receive registration for their poppers mark JJ after amending their application to not include nail polish remover to overcome a likelihood of confusion Office Action.[157] Pac-West was not the only one still registering trademarks; Lockerroom Marketing demonstrates how poppers trademarks dealt with the trademark process, from foreign prior registrations to consent agreements.

However, the subsequent registrations by Lockerroom Marketing show a shift, which reflects how the USPTO was becoming aware of the existence of poppers. Lockerroom Marketing’s first attempt to register LOCKERROOM was initially denied because the identification of goods required clarification.[158] Unlike its previous applications, Lockerroom identified goods beyond just leather cleaners, including, “chemical compositions comprising amyl nitrates and nitrites.”[159] In the Office Action, the USPTO offers an acceptable description of goods, including

Sexual stimulant inhalants comprising amyl nitrate, Sexual stimulant inhalants comprising amyl nitrite, Central nervous system stimulants comprising amyl nitrate, Central nervous system stimulants comprising amyl nitrite, Chemical preparations comprising amyl nitrate for pharmaceutical or medical purposes, namely, for {indicate intended use properly in Class 5, e.g., treatment of sexual dysfunction}, Chemical preparations comprising amyl nitrite for pharmaceutical or medical purposes, namely, for {indicate intended use properly in Class 5, e.g., treatment of sexual dysfunction}.[160]

This would be the first time that the USPTO would acknowledge that amyl nitrite existed as a recreational sex drug by asking the applicant to indicate whether the goods are being used “for sexual stimulation or other stimulant use.”[161] It is unclear what triggered this specific shift, whether they were first made aware by Lockerroom Marketing’s own previous opposition, or the specific Examining Attorney independently discovered the existence of poppers in their research. If the company adopted any of these class descriptions, they would be accurate descriptions but denied as a per se violation of unlawful use in commerce. After all, recreational poppers are still illegal to sell, so they should not be eligible for trademark protection under the unlawful use doctrine. Lockerroom Marketing avoided the sexual stimulant claim entirely and amended their application to “leather cleaning preparations,” which was sufficient for the USPTO.[162] They seemed to learn their lesson, sticking to registration for leather cleaners for their next wave of trademark registrations in 2013.[163]

In 2015, Pac-West was born through a transfer of Grand Canyon’s trademarks, and it remains the current owner of RUSH and other poppers brands today.[164] There was a series of new poppers trademark applications, including new lines like SUPER RUSH, GOLD RUSH, and NEVER FAKE IT!.[165] These applications, which had goods descriptions containing the typical cleaner or air deodorant language, received registration.

At the same time, AFAB Industrial Services (AFAB), a former poppers manufacturer and licensor of RUSH and other trademarks, sought to cancel or oppose six of Pac-West’s trademarks on the basis of no lawful use in commerce and fraud before TTAB.[166] They likely did this to continue selling poppers without paying for license fees or opening themselves to liability for trademark infringement claims. Namely, they argued that these trademarks were being used to sell poppers. These oppositions were ultimately withdrawn, with AFAB dropping their claims under a 2016 Settlement.[167]

However, the USPTO’s newfound awareness of poppers, from Lockerroom Marketing’s previous Office Action or AFAB’s dropped claims, created pushback when Pac-West sought to file poppers trademarks for “[c]hemicals, namely, Isobutyl nitrite.”[168] The Office Action denied registration based on “REQUIREMENT FOR ADDITIONAL INFORMATION - MARIJUANA-RELATED GOODS,” demanding that the “applicant must submit a written statement indicating whether all the goods . . . comply with relevant federal law, including The Anti-Drug Abuse Act of 1988.”[169] If there is no lawful use, then the USPTO will deny the registration. Funnily enough, they do mention that a proper identification of goods could include “[c]hemicals, namely, Isobutyl nitrite for use as a respiratory stimulant; chemicals, namely, isobutyl nitrite for use as a sexual stimulant.”[170] This would not have solved the unlawful use problem, but it shows awareness of a proper description. However, the USPTO’s suggestion of a more accurate product description does not constitute a waiver of the lawful use requirement. Furthermore, the Office Action asked for the written response to the following questions:

-Are applicant’s identified goods intended for ingestion or inhalation?

-Are applicant’s identified goods intended for use as “poppers,” which are alkyl nitrites/isobutyl nitrite that is inhaled for recreational purposes, especially in preparation for sex?

-Do applicant’s identified goods contain gold?[171]

-Are the applicant’s goods lawful pursuant to The Anti-Drug Abuse Act of 1988?[172]

This was a huge departure in poppers trademark registration for multiple reasons. This was the first time that the USPTO had definitively and officially recognized the word “poppers.”[173] Additionally, the Office Action showed that the USPTO was aware that consumers were using poppers recreationally, and it included images of poppers website advertisements in its attachments as exhibits.[174] Most importantly, the USPTO talked about failure to allow registration based on unlawful use.[175] In response, Pac-West chose to abandon these trademark applications, not seeking to incriminate themselves.[176]

At the same time, Pac-West was less risk-averse in their applications against these same claims of unlawful use for more traditional poppers trademark descriptions that did not include descriptions of chemicals. As with Lockerroom Marketing, Pac-West successfully filed poppers trademarks for “all-purpose cleaners,” “desiccants,” and “cleaning preparations.”[177] In the same batch of poppers trademark applications in 2015, the Examining Attorney asked a similar line of questioning about the nature of these marks, including whether the products were actually poppers and were ingested.[178] In response, Pac-West stated positively that the “All-purpose cleaners; Cleaning preparations” in Class 3 complied with relevant law, including the Anti-Drug Abuse Act of 1988.[179] As a response to the USPTO’s questions, Pac-West included the labels on their products, which said solvent and that the goods are not for recreational use. This satisfied the USPTO, which ultimately granted registration for many of these marks despite gathering internet evidence to the contrary. As long as poppers trademarks do not extend to descriptions of chemicals, then the USPTO seems content to ignore their knowledge of recreational poppers usage and how it is actually being marketed and sold. Just like the FDA, the USPTO has historically been more than happy to not rock the boat and instead turn a blind eye to poppers.

In 2016, Pac-West filed a series of applications to expand many of their marks to include incense, once again marking a definite interest in expanding trademark registration.[180] Interestingly, the specimen for these applications showed a package of incense sticks with the trademarks.[181] Regardless of the different physical form of the product, this does fit in a broader trend of clear expansion of trademark registrations by Pac-West. Again, this is further evidence of how poppers companies have continued to expand their trademark rights over all possible descriptions that poppers can legally be registered under.

In the 2020s, Pac-West has continued to file trademark applications. Interestingly, neither of the applications filed in the last two years has faced an Office Action based on the acknowledgement of poppers existing.[182] A feature of the USPTO is that the Examining Attorney for any individual trademark application is assigned after a trademark application is filed.[183] It may be that the Examining Attorney who looked at Pac-West for its 2015 applications knew about poppers, but the past few have not. Maybe the Examining Attorney chose not to file such an objection based on past decisions to grant registration anyways. Regardless, it remains to be seen how the USPTO will handle the continuing registration of poppers trademarks.

In the meantime, the USPTO has continued to give poppers full protection under trademark law. Lockerroom Marketing has continued filing registrations in the United States, including a wave of applications as recently as 2022. Interestingly, the USPTO denied the initial registration of Canada’s JJ LOCKERROOM and LOCKERROOM marks under partial likelihood of confusion over Pac-West’s own LOCKER ROOM mark.[184] During Pac-West’s wave of applications in 2015, one of its successful trademark filings was for the mark LOCKER ROOM covering “all-purpose cleaners,” which actually overcame a likelihood of confusion refusal based on Lockerroom Marketing’s then-valid LOCKERROOM mark covering “leather cleaners.”[185] In its application for JJ LOCKEROOM, Lockerroom Marketing claimed priority based on foreign filing, which means that they essentially claimed that they used the mark before Pac-West as made evident by their registration in Canada.[186] They also made the argument that their trademark application for all purposes-cleaner was different than Pac-West’s registered mark for leather cleaner.[187] Currently, the JJ LOCKERROOM application is suspended until they provide proof of a foreign registration and on likelihood of confusion grounds.[188] Meanwhile, the LOCKERROOM mark has been suspended on similar grounds.[189]

Going back to Lockerroom Marketing’s initial opposition in 2010, these poppers manufacturers have been in an intermittent, decade-long fight over owning LOCKER ROOM in the poppers space. One could chalk this dispute to trademark strategy, each party irresponsibly letting their respective trademarks lapse. Nevertheless, it shows how much value these companies put in poppers trademarks, especially historic trademarks like LOCKER ROOM, which was the first to ever be registered. The main issue is that neither party can trademark the poppers themselves, instead being forced to systematically and slowly expand their trademarks to cover all possible goods descriptions that poppers could conceivably fall under.   

At the same time, AFAB has once more filed a TTAB opposition against Pac-West seeking to cancel their poppers trademarks on similar grounds as its earlier challenges: unlawful use.[190] After hearing from both parties, the TTAB has since suspended the cancellation proceeding pending the final determination on the two pending civil actions.[191] Despite the District Court dismissing counterclaims on registration cancellation, the TTAB found that cancellation was an ongoing issue, which in addition to the other claims involved in the civil action, made a decision inappropriate here.[192]  The trial between AFAB and Pac-West was initially scheduled for March 2024—with AFAB alleging that the ultimate resolution, including appeals, may not occur until 2026.[193] It remains unclear whether these oppositions will eventually come to fruition or the oppositions will be dropped. If these oppositions are not dropped, and this issue comes before the TTAB once more, it will be interesting to see how the USPTO will directly tackle them.

Throughout the years, one can see the complicated evolving relationship between the USPTO and poppers companies. From the beginning, the poppers industry has been interested in having their trademarks registered. They have often described their marks as “odorizers,” “air deodorant,” “leather cleaner,” and “nail polish remover.” Given the USPTO’s presumption of lawful use, these registrations have been granted continuously without issue.[194] Poppers trademarks have proven valuable, as evident through their use as security interests. They have also continued to expand as companies try to protect their brands by claiming any possible goods description that poppers could be filed under. At the same time, the USPTO in the 2010s began explicitly recognizing the existence of poppers as a recreational drug. As a result, there is currently a push and pull relationship between the USPTO and poppers companies. If the trademarks remain squarely within the historical tradition of poppers registrations, then the USPTO has been willing to look the other way. However, there remains an open question regarding how bold these poppers companies will be in the near future, particularly with the current fight over the marks by poppers competitors.

3.     The Courts Inhale the Gray Area

In Pac-West Distributing v. AFAB Industrial Services, a federal court addressed the issue of poppers in the trademark context, but explicitly sidestepped the issue of unlawful use.[195] Pac-West and AFAB have been in protracted litigation with one another in the Eastern District of Pennsylvania since 2015.[196] Both parties have a litany of claims and counterclaims against one another, but one of the major issues is over trademark and trade dress infringement.[197] This is the first time that poppers have ever been litigated in federal courts, besides the exceedingly rare criminal prosecution.[198] For the purposes of this Note, the discussion of this ongoing case will be limited to recent developments that directly have to do with the validity of poppers trademarks. Essentially, the court has been directly asked by AFAB to consider whether the poppers trademarks should be valid.[199]

So far, Pac-West has characterized their trademarks as registered, referencing the normal goods description of cleaning preparations. However, Pac-West’s 2019 Amended Complaint stated that “Pac-West’s Products have also become among the most recognized in the LGBTQ community.”[200] This litigation was the first time that poppers companies have talked about their trademarks and the LGBTQ+ community in a legal proceeding.[201] Interestingly, Pac-West and its predecessors have never referenced its large LGBTQ+ clientele before the USPTO, including in Office Actions to argue against likelihood of confusion. They maintained that their infringed trademarks cover only “all-purpose cleaners, cleaning preparations, incense, desiccants, nail polish, and other related products.”[202]

Among AFAB’s primary defenses was that Pac-West’s trademarks constituted unlawful use and were not valid. They argued that there was lack of standing, since the trademarks subject to the lawsuit were allegedly invalid, and alternatively, that unlawful use acted as an affirmative defense against trademark infringement.[203] They argued that there was no trademark infringement because Pac-West’s trademarks violated the prohibition on unlawful use.[204] In its motion to dismiss, AFAB argued that “all evidence of public record clearly establishes that [Pac-West] is marketing and selling ‘poppers’ under its [m]arks that contain Isobutyl Nitrite.”[205] Additionally, AFAB stated that since Pac-West acknowledged that its products were sold at novelty stores and were well-recognized in the LGBTQ+ community, then they must have been used recreationally and their trademark applications were therefore fraudulent.[206] It included additional information, such as notifications from the Australian and Canadian governments and past registration applications Pac-West abandoned.[207] Since the Lanham Act only covers lawful use of marks in commerce, AFAB argued that Pac-West could not rely upon the statute’s protections.

The court first directly addressed AFAB’s argument that Pac-West lacked standing, ultimately rejecting the argument.[208] It directly acknowledged the existence of poppers, stating in a footnote that “‘poppers’ are recreational drugs inhaled to achieve a high and said to facilitate anal intercourse.”[209] Since it was the motion to dismiss stage, the court assumed that Pac-West was indeed using its mark for only lawful purposes. The judge hesitated to explore the issue further, stating “the Court certainly refrains from speculating as to the legality of Pac-West based on AFAB’s present submissions and inferences.”[210] Therefore, the court rejected the lack-of-standing argument that was based on unlawful use.[211]

As of August 2024, the district judge has also explicitly declined using the court’s authority to declare the poppers trademarks invalid. The district judge made the decision to limit the court’s inquiry into determining “whether this Court may cancel a trademark already registered by the USPTO based on the Court’s own determination that the mark has been used in a way that violates federal law.”[212] Circuits are currently split on incorporating the USPTO’s lawful use requirement as a defense in trademark infringement proceedings.[213] In this motion granting summary judgment to Pac-West, the judge chose not to apply the unlawful use doctrine and dismissed the unlawful use defense.[214] For the time being, the validity of poppers trademarks has remained the same.

In the only poppers trademark case, the court decided not to question the validity of the trademark, deferring to the USPTO. The judge made this decision largely by not adopting the unlawful use defense, which the Third Circuit has not accepted or rejected. However, Pac-West is incorporated in Nevada, part of the Ninth Circuit, which has found that unlawful use is a defense.[215] Therefore, this issue may have a very different outcome in any future trademark litigation. In the meantime, poppers continue to be made and sold in a legal gray zone effectively supported by both the courts and the USPTO, who have been unwilling to upend the status quo.

B.     Poppers: A Global Legal Gray Area

Poppers are not only a U.S. phenomenon; they exist in gay communities across the world. Globally, poppers for recreational usage are at some level illegal. Depending on the jurisdiction, poppers often exist in a legal gray zone similar to the United States and are readily available at sex shops.[216] Historically, police in North America, Europe, and Oceania regions have periodically raided sex and adult shops.[217] However, police raids appear to have possibly diminished in recent years.[218] Individuals and establishments can also face criminal prosecution for importing poppers.[219] In other jurisdictions, consumers under stricter regulation can still obtain poppers through online marketplaces, but they expose themselves to higher risk of punishment.[220] However, there has also been recent pushback against the further criminalization of poppers, including public controversies in the United Kingdom and Australia.[221] As discussed throughout this Section, these two countries provide alternative models and lessons to be learned for any future poppers reform in the United States.

Australia and the United Kingdom, as opposed to other countries, were chosen as case studies because they represent the most public debate on poppers in recent memory. In both cases, the LGBTQ+ community also uniquely raised their voices and successfully pushed back calls for increased criminalization.[222] Moreover, these two countries provide two poppers regulatory models distinct from the current U.S. model, which provides trademark protection while both requiring a doctor’s prescription for amyl nitrite and banning the sale of other alkyl nitrites for recreational use.[223] In the United Kingdom, there is trademark registration of poppers brands with no regulation of most alkyl nitrites at all, and amyl nitrites are available through a pharmacist.[224] Meanwhile, Australia has incorporated poppers into their medical system and subjected them to regulation, criminalizing the sale of poppers without either a doctor’s prescription for most alkyl nitrites or pharmacist approval of amyl nitrites for therapeutic use.[225] Together, the United Kingdom and Australia demonstrate different approaches to regulate poppers, especially regarding choosing whether or not to incorporate poppers under their health regulatory regimes, and therefore help inform whether the United States should make the same decision.

1.     The United Kingdom’s Uncertain Poppers Regime

Similar to the United States, the United Kingdom has allowed poppers to exist in a legal gray area.[226] For instance, Zmith states that “[p]oppers were not illegal, nor was their manufacture or their sale.”[227] Historically, in the United Kingdom, amyl nitrites could be legally obtained at a pharmacy without a prescription.[228] As early as 1956, the British government was aware of and had made public statements on the illicit use of amyl nitrites.[229] The Home Secretary stated in a Home Office Action that:

From inquiries I have made . . . it would appear that some chemists in the West End of London have been selling amyl nitrite in circumstances which suggest that it is not required for legitimate medical purposes. I do not consider it appropriate to seek action through the Poisons Board because that Board has always frowned on “prescriptions only” control of substances which are not highly poisonous, simply because they are liable to be used for undesirable purposes.[230]

Although the government understood the drug was being misused, it explicitly chose not to take action. As the following Sections will demonstrate, the United Kingdom’s position has been that if there is only minimal evidence of harm, then the usage of amyl nitrites as poppers is largely tolerated even if not officially sanctioned.

a.     U.K. Courts Decline to Pop the Weasel

The U.K. courts have similarly tolerated, although never explicitly condoned, poppers. In 1976, the Statutory Committee of the Pharmaceutical Society, an industry body, conducted an investigation on two pharmacists, Peter Beaton Lucas and Paul Roland Fletcher, who were allegedly selling amyl nitrite for misuse.[231] In its investigation, the Statutory Committee found that one-fourth of a packing company’s 675,000 ampoules in the twelve-month period prior had gone to Roland Chemists and the ampoules were being “frequently sold” to gay people.[232] After the investigation, the Statutory Committee found that the two pharmacists “knew, or deliberately shut their eyes to” the misuse of amyl nitrite, which was deemed detrimental to the patient’s health.[233] As a result, the two pharmacists were stricken from the Pharmaceutical Society’s Register for selling poppers.

However, the High Court reversed the decision on evidentiary grounds, finding that the Committee had failed to properly submit into evidence the textbook Martindale, the Extra Pharmacopoeia.[234] In their deliberation, the committee members referenced the textbook to decide whether the use of amyl nitrite as a sexual stimulant was detrimental to a patient’s health, which the defense did not have the opportunity to refute.[235] Therefore, the High Court found for the defendants, reversing on largely technical grounds the decision to strike the two pharmacists from the record.[236]

Courts have also rebuffed efforts to prove that poppers have caused significant harm. In the late 1980s, the police attempted to prosecute pub owners who sold poppers, arguing that it was conspiracy to poison people.[237] However, the judge ruled that the prosecution failed to meet their evidentiary burden and found all the defendants innocent.[238] The Medicines Control Agency, now Medicines and Healthcare Products Regulatory Agency, brought a prosecution in 1999 that alleged that poppers “containing isobutyl nitrite were medicines and hence required a product licence for sale and supply in the United Kingdom.”[239] However, the court ruled that the defense was not guilty, accepting the defense’s argument that poppers did not cause significant harm. Unlike the United States, U.K. courts have tackled poppers outside the trademark context and have even explicitly protected the sale of poppers. Although prosecutions in both jurisdictions are sporadic, the result is similar, with the rise of poppers companies that exist in a gray area of the law and receive trademark protection, as will soon be discussed below. Both U.S. and U.K. prosecutions have been unwilling to tackle poppers, and companies were allowed to continue selling their products as long as they were labeled as “room odourisers.”[240]

b.     The Modern Gray Area of Poppers in the United Kingdom

Most recently, the U.K. government has also shown resistance to legislating definitively on poppers’ legal status. In a 2011 report, the Advisory Council of the Misuse of Drugs advised that poppers “appear to fall within the scope of ‘The Intoxicating Substances (Supply) Act 1985.’”[241] However, no action was ever taken based on the 2011 report.

Years later, Parliament passed the Psychoactive Substances Act 2016, which was initially believed to create a blanket ban on the production, supply, and importation of poppers.[242] In fact, a motion to exempt poppers from this legislation was proposed and defeated.[243] During deliberations, Conservative MP Crispin Blunt publicly and famously came out as a poppers user, stating, “I use poppers. I out myself as a user of poppers. I am astonished to find it (the government) is proposing it to be banned and frankly so would many other gay men.”[244] After the bill was passed, the Advisory Council reversed course, stating that poppers did not “fall within the scope of the current definition of a ‘psychoactive substance’” and were therefore excluded from the Act.[245] Through some administrative maneuvering, poppers remained firmly planted in a legal gray zone in the United Kingdom.

Despite the contortions and consternations by government officials, the U.K. trademark regime continues to offer poppers manufacturers protection under the law. For example, John Addy, founder of poppers brand Liquid Gold, is the biggest producer of poppers in Europe.[246] In 2011, Addy trademarked two brands of poppers, LIQUID GOLD and DV8.[247] They were properly registered with the U.K. Intellectual Property Office under Class 5 for pharmaceuticals with the description of “odourisers, de-odourisers, incense and perfume all for use in rooms.”[248] Unlike in the United States, poppers trademarks in the U.K. are a much more recent phenomenon, but the investment in poppers trademarks matches the reinvestment by Pac-West in the 2010s.[249] From a trademark perspective, the United States and United Kingdom have some of the largest poppers companies with robust trademark portfolios. Therefore, these two countries are the most interested in defending their domestic corporations.[250]

Despite the differences in laws and trademarks, the United Kingdom’s history with poppers shares many similarities with the United States. The United Kingdom is far less restrictive than the United States, lacking the same nationwide ban on alkyl nitrites.[251] However, in practice, they both have functioning poppers markets that exist in the gray area dominated by a few brands without meaningful government oversight.[252] When faced with backlash on poppers, the U.K. government decided to essentially stay the course and keep with the historic practice of looking the other way.[253] Instead of interfering with the current poppers regime, both the United States and United Kingdom have ultimately decided to keep poppers in the gray zone, allowing poppers to operate outside the realm of the law while granting them trademark protection.[254]

2.     Australia’s Imperfect Incorporation of Poppers

Australia is seemingly the only jurisdiction where poppers have been incorporated into the government’s medical system. Similar to the United Kingdom, the conservative government in Australia considered a blanket ban on poppers in 2018.[255] At the time, the sale of poppers was technically illegal but available for purchase, which was directly threatened by the interim decision.[256] After facing fierce backlash from the LGBTQ+ community, the government compromised by implementing a requirement for a doctor’s prescription for most alkyl nitrites and pharmacist approval for therapeutic use of amyl nitrate.[257] By making it subject to medical regulation and available through pharmacies, this de facto legalized the recreational use of poppers.[258] Legalization presents its own difficulties and obstacles, but it is unique among all jurisdictions and better aligns with the traditional trademark regime.

a.      Twentieth-Century Poppers Landscape in Australia

The regulation of alkyl nitrites in Australia changed throughout the twentieth century. In 1955, amyl nitrite was initially listed as a Schedule 3 drug, which meant it could be obtained at a pharmacy without a doctor’s prescription.[259] Later, butyl nitrite was listed as a Schedule 3 drug after the Department of Health and Aged Care considered anecdotal evidence that it was being used as a sexual stimulant.[260] From 1989 to 1990, the aforementioned nitrites and other related nitrites were put in Schedule 4, which meant that they required a doctor’s prescription.[261] In 1993, the National Drugs and Poisons Committee (“NDPSC”) considered a proposal to illegalize possession of amyl and butyl nitrites without authorization based on “their reported use by paedophiles, who administer it to children for anal dilation.”[262] There was never any evidence of widespread usage of poppers by pedophiles. In 1999, the Working Party similarly rejected harmonization between Australia and New Zealand for butyl, nitrite, octyl nitrite, isoamyl nitrite, and isobutyl nitrite due to similar concerns of usage by pedophiles.[263]

However, poppers were still widely available at sex and adult stores for purchase behind the counter. According to a 2018 study, 50 percent of Australian gay and bisexual men reported using poppers in the previous six months.[264] Despite the widespread use, individuals still risked the possibility of fines and criminal records whenever using poppers. Poppers were certainly stigmatized in Australia, but they were still unofficially used for recreational purposes.[265]

b.     Initial 2018 Proposal to Regulate Poppers in Australia

In 2018, the Therapeutic Goods Administration (“TGA”), a part of Australia’s Department of Health and Aged Care, proposed that the alkyl nitrites should be elevated to a Schedule 9 substance, which includes drugs like heroin, methamphetamine, and cocaine.[266] Reclassification to a Schedule 9 substance would mean criminal penalties for the use, sale, or possession of poppers. In their proposed decision, TGA pointed to the fact that “alkyl nitrites are largely used recreationally as ‘party drugs,’” which they believed were being misused and causing undue health risks.[267] They explicitly recognized and criticized the existing poppers market, mentioning “[t]he products are generally labelled as ‘leather cleaners’ or ‘room odorisers’ but there is no credible evidence they are actually used for either of these purposes. Rather the contents of little bottles are inhaled and cost around $30 to $50.”[268] Initially, it seemed that the Australian government was set to recognize the existence of poppers only to make them explicitly illegal.

There was a lot of tension present in the agency’s interim decision. At one point it stated that “[t]o avoid detection by authorities, alkyl nitrites are often labelled and sold as leather cleaner, video head cleaner, incense or room-odorising products. This can result in misidentification and impair the risk assessment.”[269] The interim decision completely ignored the trademark aspect of poppers entirely. Brands like RUSH and JUNGLE JUICE may be many things, but they are hardly subtle. If these companies wanted to avoid detection, then they certainly would have chosen a more innocuous trademark or trade dress. Additionally, the risk of misidentification was lower because these goods are almost certainly sold exclusively at sex and adult stores, as compared to general convenience stores where poppers products might be more decontextualized.

Admittedly, the interim decision also pointed out the risk of misidentification post-sale by children, stating that “alkyl nitrites are sweet-smelling liquids and pose a risk to child safety through cases of accidental ingestion.”[270] Ingestion of nitrites was and is clearly a health risk, but the decision did not truly distinguish a higher level of risk from this group of products compared to other more common household products. After all, the likelihood of having a sexual stimulant lying around in reach of a child is certainly lower than sweet-smelling and child-digestible household items like fabric softener, hand soap, or even hand sanitizer. There are few circumstances, unless you keep it near drinks, where a sex drug for anal sex could be within reach of children. By laser-focusing on the description of the goods, the decision ignored the source-identifying function that these trademarks were providing that reduced likelihood of confusion.

This interim decision was met with immediate and fierce backlash from the LGBTQ+ community, saying it unfairly targeted them. In response to the backlash, the TGA created opportunities for the public to comment on the interim decision.[271] There was strong opposition to placing all alkyl nitrites in Schedule 10. A former chief of the Australian Federal Police also came out against the proposition, saying, “No other ban has been effective. Why would this one? . . . Nothing we’ve banned for the illicit drug marketplace has had much difference and this will be no different.”[272] Interestingly, there was disagreement between geographical groups regarding the proper Schedule classification of poppers. The public meeting in Sydney preferred Schedule 3, but the general consensus for Melbourne was that alkyl nitrites should be Schedule 2.[273] Schedule 2 can be bought over the counter, but Schedule 3 requires talking to a pharmacist. Schedule 3 would mean disclosing information about personal circumstances to a pharmacist in a public setting, but Schedule 2 meant that poppers would be easily accessible on pharmacy shelves. During the deliberation process, advocates also voiced concerns about whether any company would choose to register a product, how long such a process might take, and what the cost implications for users would be.[274]

c.      Final Agency Ruling and Its Implications for Poppers in Australia

Sensitive to the public backlash, the TGA took this feedback into consideration before releasing its final decision. In 2019, the TGA released their final decision, which incorporated poppers under the purview of the medical system.[275] The updated regulation put the alkyl nitrite family as Schedule 4 substances, which also required a doctor’s prescription.[276] In its reasoning, the decision stated that the TGA “considered their potential benefit for relaxing smooth muscle and preventing potential tearing of the inner sphincter during receptive anal intercourse, which [they] note was the central argument put forward in the majority of public submissions in support for a less restrictive or unrestricted access to alkyl nitrites.”[277] This is a recognition that the majority of public submissions were in favor of increasing popper accessibility, instead of making it more difficult. However, they put specifically amyl nitrites under Schedule 3 “when in preparation[] for human therapeutic use and packaged in containers with child-resistant closures.”[278] This was still an expansion on existing scheduling because it included the family of alkyl nitrites to prevent workarounds through similar nitrites. However, the advocacy of the LGBTQ+ community defeated the blanket ban on poppers, creating a path towards poppers legalization.[279]

Poppers may have been legalized in Australia, but they have also been placed under heavy regulation there. Despite concerns that a Schedule 4 entry with a doctor prescription requirement could possibly present “a barrier in terms of patient-doctor communication and disclosure of personal circumstances,” the decision decided that “the potential for harm in the absence of medical practitioner oversight” outweighed this privacy concern.[280] Therefore, poppers would have to be bought with a prescription from a doctor or for amyl nitrite specifically with the grant of a pharmacist. These could only include nitrite medicines that have gone through a rigorous medical quality evaluation process. Additionally, they also explicitly rejected the concern that “any changes . . . would remove alkyl nitrites from adult shops or sex on premises venues may adversely affect members of the [LGBTQ+] community in terms of sexual health, sociocultural and psycho-social harm.”[281] Therefore, the beginning of poppers legalization also potentially started the downfall of the existing poppers market by making it illegal for sex and adult shops to sell poppers.

Despite the legalization of poppers, there is still no real way to legally purchase poppers in Australia. Currently, there are no alkyl nitrite products that are approved for sale in Australia. When the decision was first announced, Simon Ruth, CEO of Thorne Harbour, commented that “[i]t may be two years before we see [regulated] amyl nitrites in the marketplace.”[282] It is unclear whether a manufacturer has attempted to apply or is in the middle of having their product approved by the TGA.

The application process, like other drug approval processes, can be both lengthy and expensive, which was a concern raised by many who believed the new rules were not liberal enough. This concern is troubling because the current rules prevent importation of amyl and other alkyl nitrites without a prescription.[283] One can buy poppers overseas with a doctor’s prescription or theoretically get a pharmacist to make an amyl-based poppers drug directly. However, the TGA decision still creates a clear and predictable regulation that could encourage investment into creating poppers products by sophisticated pharmaceutical and chemical companies. This decision would encourage competition and innovation in the poppers market. Most importantly, regulation provides the opportunity to ensure consumer safety through regulatory oversight, making poppers safe to use. Despite all this progress, the legal status of poppers in Australia remains extremely tenuous and unclear during this transition period.

Certainly, Australia recognizes some of the benefits that proper regulation could provide. The TGA conducted a laboratory test of alkyl nitrite poppers available in Australia and attainable online, including RUSH and JUNGLE JUICE.[284] They found that these products did often have the ingredients listed on their labels.[285] However, none of these ingredients were registered on the Australian Register of Therapeutic Goods. The report also found that the products lacked appropriate details that could be construed as misleading when it comes to listed ingredients and other content.[286] On the other hand, there are concerns about finding a doctor or pharmacist who is willing to give patients  poppers.[287] Additionally, regulated pharmaceutical companies will have to go through the lengthy regulatory process to have poppers officially approved for sale.[288] Despite Australia’s best efforts and meaningful reforms, poppers continue to be a clandestine good for the moment.

Across the world, no government seems to know how to handle poppers. As governments become aware of poppers’ existence, many have tried to ban the usage of alkyl nitrites, but few have taken a concentrated effort to regulate and prosecute the poppers industry and users.[289] In recent years, any further criminalization or prosecution attempts of poppers users or distributors has faced backlash from and accusations of targeting the LGBTQ+ community. At the same time, administrative government bodies and legislatures have been reluctant to approve or otherwise legitimize the usage of poppers. Governments seem happy to look the other way while even attempts to regulate poppers, like in Australia, have proven difficult though promising in the short-term.

As revealed through this Section, in all three countries, no current model sells poppers on pharmacy shelves. Instead, the poppers market is dominated by a few recognizable brands which primarily sell in sex and adult stores. These countries also have different approaches to regulation, whether it be IP protections, criminal bans, or different prescription requirements. Most of all, the various poppers regimes show that reforms may not be enough to displace the current nonregulated poppers market and advance consumer welfare without making poppers available on pharmacy shelves.

III. Popping the Question: What Protection is Right For Poppers?

This Section seeks to address the relationship between trademark law and the LGBTQ+ community before weighing the benefits of the current IP protection versus poppers reform through legalization and regulation.

A.    The Historic Relationship Between the LGBTQ+ Community & Trademark Law

Trademark law has historically served a gatekeeping function against the LGBTQ+ community. By its very nature, trademark is an exclusionary force, giving trademark holders a litany of rights and privileges to protect their marks.[290] This is all in pursuit of preventing consumer confusion, protecting a mark’s source identifying function, and guarding consumer goodwill.[291] As we will discuss later in this Section, businesses and other trademark holders for most of American history did not want to associate themselves with the LGBTQ+ community. Trademark law has been a powerful tool to silence these associations. At the same time, the marginalized status of the LGBTQ+ community has also historically created difficulties in getting their marks registered. Trademark law should be approached with caution since it is not only a powerful tool of protection, but it also often grants ownership to one entity.

In 1982, the U.S. Olympic Committee (“USOC”) enjoined Tom Waddell, a gay athlete and activist, from hosting the Gay Olympics in San Francisco.[292] The Committee challenged Waddell’s use of the OLYMPICS mark in International Olympic Committee v. San Francisco Arts & Athletics.[293] The Gay Olympics was one of the few organizations that the USOC prohibited from using “Olympics” in its name, allowing other groups like the Nude Olympics and Alcoholic Olympics.[294] In his dissent, former Judge Alex Kozinski wrote, “[I]t seems that the USOC is using its control over the term Olympic to promote the very image of homosexuals that [Waddell] seeks to combat: handicapped, juniors, police, Explorers, even dogs are allowed to carry the Olympic torch, but homosexuals are not.”[295]

The case was eventually appealed to the Supreme Court, but the USOC prevailed once more.[296] This was the same term as Bowers v. Hardwick, in which the Court upheld sodomy laws that criminalized homosexual conduct reflecting prevailing sociocultural views of the time arguably against gay people.[297] After the USOC prevailed, their lawyers filed a lien on Waddell’s  house that was only dissolved after he passed away in 1987 at the age of forty-nine from AIDS.[298] This case is an example of how trademark law has been an antagonistic force against the broader movement for LGBTQ+ acceptance.

Furthermore, the administrative process of even well-meaning provisions of trademark law have historically barred the LGBTQ+ community. Dykes On Bikes (“Dykes”) is a nonprofit lesbian motorcycle organization that is well-regarded within the LGBTQ+ community and actively participates in Pride parades across the country.[299] In the 2000s, they had consistent struggles registering their trademark, with their mark being denied on the grounds that the inclusion of “dyke” was “disparaging language.”[300] The rigidity of the trademark application process left little room for reclamation.

Eventually, the group was able to appeal the decision and receive registration by submitting numerous statements about how the term “dyke” had been reappropriated by the lesbian community. They also had to overcome third-party opposition by a group that argued that the term “dykes” was disparaging to men, in addition to saying that “the mark in full is associated with a pattern of illegal activity by the group applying for registration of the mark.”[301] However, they ran into the same issue on the same grounds when they sought to file their logo.[302] This barrier against the reclamation of terms by marginalized groups, LGBTQ+ or otherwise, would eventually find its way up to the Supreme Court. After Matal v. Tam in 2016, the Court struck down the registration restriction for trademarks that disparaged under Section 2(a) of the Lanham Act.[303] However, this serves as another example of how the trademark registration process itself can present systemic barriers to marginalized groups.

This background demonstrates that the LGBTQ+ community has had a fraught relationship with the USPTO. At the same time, a class of trademarks that have a strong association with the LGBTQ+ community—poppers word marks—has been registered since the 1970s with little fanfare or backlash. Admittedly, one could attribute this anomaly to either somewhat duplicitous trademark applications or a general lack of knowledge of poppers by the USPTO. However, recent court cases and USPTO actions demonstrate that the legal community and the legal system have an increasing awareness of poppers trademarks. Therefore, it is timely at this inflection point to ask if IP protection alone is the right path forward for not only the poppers industry but also the LGBTQ+ community as a whole.

B.     Smelling Out the Pros and Cons of IP Protection for Poppers

Trademark law grants mark owners several powers and privileges that allow them to police their mark and protect their brand identity. Although there are many benefits to the current regime of IP protection, it also has the potential to stymie innovation and fail to adequately protect consumer welfare.

1.     Benefits of IP Protection: Maintaining Access and Brand Identity

Trademark protection allows poppers companies to better police their marks, preventing other companies from taking advantage of existing consumer goodwill. Pac-West’s entire website, for instance, is meant to highlight counterfeit poppers that use their marks.[304] They allege, “The USA and the rest of the planet is being flooded with imitation PWD® products . . . Many of these imitations are manufactured in CHINA and illegally imported. These products may possibly contain dangerous hazardous chemicals.”[305] Their long and contentious litigation with AFAB is all about policing their mark from trademark infringement. The goodwill of the mark is especially important for a good like poppers, which is made of a chemical that could cause lasting harm if improperly prepared and used. By providing customers with a consistent experience with the brands they choose, trademark protection is one of the few feasible ways that consumers can be protected when using poppers.

As shown by Pac-West’s own website, poppers are also particularly vulnerable to counterfeiting.[306] Consumers have a barrier to access poppers because they exist in a gray area of the law. This can make it difficult for consumers and retailers to guarantee the authenticity of their goods.[307] They are not available in most large online retailers, so consumers are forced to buy them off popper-dedicated websites that lack the guarantees that major online retailers provide.[308] For example, Pac-West alleges that poppers websites like www.bulkaromas.com and www.awjpoppers.com are “100% fake.”[309] Though poppers trademarks have changed hands over the decades, RUSH remains one of the most recognizable poppers brands. The mark owner should be able to profit from the goodwill they have carefully cultivated around their mark. Therefore, absent any regulatory oversight today, trademark law is arguably a necessary—and really the only—tool currently available to protect both poppers companies and consumers.

Moreover, trademark law completely circumvents the political will issue: legalization for many alkyl nitrites would likely require passing a bill in Congress.[310] Currently, the U.S. government is unlikely to pursue criminal prosecution of poppers usage because it would incite a backlash by the LGBTQ+ community. Similar legislative debates have recently done so in Australia and England.[311] At the same time, it is also possible that politicians may lack the political appetite to change the law or otherwise repeal the current prohibitions on practically all alkyl nitrites. Poppers are still used by a relatively small population, and the FDA has been hostile to its widespread use. This is coupled with concerns that poppers usage would be politicized if Congress moved to legalize it, whether it be by anti-drug rhetoric, baseless conspiracy theories of poppers usage by pedophiles, or other talking points behind today’s uniquely high levels of hate towards the LGBTQ+ community.[312] Trademark law allows some level of legal protection without systemic changes, which helps explain why so many institutions are unwilling to upset the status quo.

2.     Shortcomings of IP Protection

Trademark protection entrenches existing poppers companies in the marketplace, which arguably stymies innovation. Consumers are more likely to use brands they recognize given the gray legal status of the product, making it hard for other players to enter the market. Currently, the poppers industry is dominated by a few players who are willing to incur the risk of selling the goods. One insider commented that different poppers brands owned by the same company are the exact same product, despite being priced differently.[313] Everett Farr, owner of AFAB, alleged that he controlled 75 percent of the U.S. poppers market and produced 23,000 bottles a day.[314] From a cost perspective, he went further by stating that poppers cost around $1 to make, are sold to distributors for $4.50, sold by distributors to sex stores and bodegas for $6, and finally sold to customers for $20.[315] This is a significant profit margin. Apart from the introduction of isopropyl and propyl nitrites after the 1990 blanket ban, poppers by the large manufacturers like Pac-West have remained largely the same today as they were in the 1970s.[316] Consumers may be less likely to buy sketchy brands since poppers usage can pose health risks. This only reaffirms the economic power of poppers trademarks. As a result, a new poppers manufacturer seeking to enter the market is incentivized to either purchase or license from an already well-established brand.

Poppers are currently a huge untapped market, still mainly bought on obsolete websites and behind the counter at adult, sex, or novelty stores. For comparison, the drug Viagra, another sex-enhancement drug, has created a nearly two-billion-dollar market with the backing of both Pfizer and generic brands.[317] Meanwhile, poppers have remained largely untouched by the rise of health startups and other pharmaceutical innovations.[318] The current regime restricts the growth of the poppers industry, preventing the consumer from getting cheaper or higher-quality goods.

C.     A Call for the Legalization of Poppers

Express legalization, the repeal of 15 U.S.C. §§ 2057(a)-(b), and FDA removal of amyl nitrite’s prescription requirement would provide predictability in an otherwise gray area of trademark and consumer law. Currently, there is a non-zero chance that a hostile administration could begin criminal prosecutions of the manufacture and sale of poppers.[319] Legalization would lessen the emphasis on trademark law as the only safeguard available to current poppers manufacturers. In order to get new companies in the poppers market, legalization would act as the proper method to encourage lower prices, new innovations, higher quality, and better safety for poppers consumers. In this Section, we will examine (1) state regulatory temporary solutions, (2) federal administrative reforms, and (3) federal legalization to address the concerns raised in this Note.

1.     State Regulatory Temporary Solutions

In the absence of federal action, poppers reform could still happen at the state and local level. States have taken the lead in the legalization and regulation of marijuana and psychedelics in their own jurisdictions, which are illegal on the federal level to manufacture and sell.[320] As to a starting point, it would be remiss not to preview at least some potential steps that could be taken at the state level.

States could seek to take action to protect consumers within the existing poppers industry. State legislatures can pass bills that seek to incorporate poppers within their state regulatory regime, making them subject to at least some level of oversight and enforcement.[321] State consumer protection agencies can be tasked to handle reports of unsafe poppers products on the market.[322] States could task state health agencies to create frameworks on researching the health effects of poppers and minimizing safety risks.[323] Similar to the budding marijuana regulatory regime, state equivalents of the FDA could create registration programs for popper businesses and products, making sure poppers sold in the state are subject to inspection and standards.[324] It would undoubtedly be helpful to at least know where poppers are being manufactured and sold if there is ever a need to do a product recall or otherwise spread information on product safety.

Unfortunately, there are limitations to state-level reforms. Obviously, any state-level reform would be restricted to the specific state instead of a national standard. Pharmacies would most likely not be able to stock amyl nitrites for recreational use pending federal legislative reform or reclassification by the FDA. Moreover, this does nothing to address the tension present in poppers trademark registration under the unlawful use doctrine. While the federal government remains inactive, grassroots efforts at the local and state level may be the beginning for meaningful poppers reform.

2.     FDA Regulatory Reform

The existing statutes banning the sale and distribution of poppers provide a second exception to the ban besides “other commercial uses.” The statutes also allow the sale or distribution of alkyl nitrites for “any other purpose approved under the Federal Food, Drug, and Cosmetic Act.”[325] The FDA is “statutorily empowered” under the Food, Drug, and Cosmetic Act to review and approve drug products.[326] This second exception therefore allows poppers to be sold when regulated and approved by the FDA. While the FDA has published little on the subject of poppers besides broad warnings against their potential misuse,[327] the FDA could learn from its sister organization in Australia. In an attempt to improve consumer safety for poppers within the existing legal framework, the Australian TGA reviewed and approved the return of amyl nitrite to pharmacies available without a doctor’s prescription.[328]

The FDA’s mission is to “promote and protect public health,”[329] so it should do far more than just issue categorical warnings to all consumers. It should make poppers safer for all the communities—especially the LGBTQ+ community—who rely on it most. Under the FDA’s purview, more research could be done, and adequate warnings could be given by the proper medical authorities and regulatory bodies. The FDA already regulates the non-recreational medical applications of amyl nitrite that are still used by doctors today like cyanide poisoning, antidotes, and angina treatments.[330] As evidenced by Australia’s toxicology study, there are instances where the current labels of poppers are not completely accurate and give inadequate warnings about the product.[331] By allowing regulation, the FDA could impose adequate labeling and warning, announce any needed product recalls, and impose penalties for defective products.

This is not a radical policy proposition. It is a simple reversion to the FDA’s original 1960 no-prescription requirement for amyl nitrite. Neither the United Kingdom nor Australia require a doctor’s prescription for amyl nitrite for therapeutic purposes.[332] Regulating poppers would draw the proper focus to consumer safety, which could better protect poppers users from any unintended side effects.

Australia also provides a roadmap for how the FDA could change its classification of amyl nitrite, including hearing from both health officials and impacted communities.[333] During Australia’s TGA deliberation, the government facilitated this debate with their LGBTQ+ community and the broader public. Controlled regulation and recognition by the government’s medical authorities won out as the best path forward for poppers.[334] If the FDA is not inclined to return amyl nitrite to its over-the-counter status, then the United States could borrow wholesale from the Australian TGA’s final ruling. This would allow alkyl nitrites to be obtained via prescription, and the safer amyl nitrite could be obtained from any pharmacy with the approval of a pharmacist.[335]

3.     Congress Should Repeal the Bans and Legalize Poppers.

The ultimate solution to all the trademark and consumer protection legal problems raised in this Note is Congressional action. Congress can remove any uncertainty in the propriety of Pac-West’s and AFAB’s poppers trademarks by repealing the bans on alkyl nitrite poppers and legalizing them outright. While state-based legalization efforts could provide a temporary remedy for consumers in states desiring to regulate poppers absent federal action,[336] those state laws would conflict with the existing federal bans and do not provide a remedy to the federal trademark issue. Further, though the FDA has the power to review and approve alkyl nitrites for consumer use,[337] pharmaceutical companies may be less inclined to apply for review and approval of alkyl nitrites for the LGBTQ+ community if Congress has not repealed the bans.

Congress should draw heavily from the well-informed Australian TGA decision.[338] First, Congress should expressly provide FDA oversight over all forms of poppers.[339] By doing so, the U.S. government can take responsibility for its past mistake of banning poppers, which most likely led to the creation of poppers forms more dangerous than amyl nitrite. These more dangerous forms warrant more individualized regulation and restriction from consumers, as discussed in the paragraphs that follow. Second, like Australia’s TGA, Congress can and should promote the relative safety of amyl nitrite specifically.[340] In its new legislation repealing the old bans, Congress should provide for wide access of amyl nitrite, require a doctor’s prescription for butyl and isobutyl nitrite, and further restrict isopropyl and propyl nitrite forms of poppers, much like Australia has.[341]

As discussed in the Technical Primer, supra, the newer but progressively more dangerous poppers products butyl, isobutyl, isopropyl, and propyl nitrites were each created in response to incremental U.S. government bans of recreational alkyl nitrite inhalants.[342] The Australian TGA administrative decision appropriately considered the specific concerns of each of these newer poppers compounds by scheduling each one differently.[343] For example, the butyl and isobutyl nitrites have been linked to cancer—warranting the TGA to require a doctor’s prescription for them in Australia[344]—but amyl nitrite has not been linked to cancer despite its use for more than a century as a chest pain treatment.[345] Similarly, isopropyl nitrite has been linked in the last decade to permanent vision loss,[346] warranting the Australian TGA’s decision to prohibit isopropyl and propyl nitrite.[347] Meanwhile, amyl nitrite has not been found to cause any such damage in its 150 years of medical use.[348]

Congress should act to correct the government’s past mistakes in this field. The U.S. government’s removal of amyl nitrite from pharmacy store shelves in 1969, which limited the availability of amyl nitrite for recreational use, most likely caused an underground industry of poppers manufacturers to arise.[349] For example, manufacturers would most likely not have created isobutyl and butyl as replacements for amyl nitrite in the 1970s had amyl nitrite remained an over-the-counter drug on pharmacy store shelves.[350] And again, the U.S. government’s ban of butyl nitrites in the Anti-Drug Abuse Act of 1988 most likely caused underground poppers manufacturers to transition to making isopropyl nitrite, the most dangerous of the chemical types of poppers.[351] In other words, by limiting access to amyl nitrites and banning poopers ingredients, the U.S. government most likely worsened the health and safety of American poppers consumers. As a result, Congress has a moral obligation to correct these mistakes and repeal the poppers bans it established in 15 U.S.C. §§ 2057(a)-(b).

Yet, as shown by the United Kingdom, Congress would not address the consumer safety concerns with the current poppers market if it repealed the existing bans but left poppers in a legal gray zone.[352] The United Kingdom has no ban of poppers, but the poppers market in the United Kingdom suffers from the same consumer safety concerns as the U.S. market.[353] Without explicit legalization or regulatory support from its government, the current nonregulated poppers market will likely persist. Congress should therefore not only repeal the existing bans but also expressly legalize alkyl nitrite therapeutic use and empower the FDA to provide specific limitations on individual compounds consistent with the Australian TGA’s tiered approach to access based on safety.[354]

Legalization would make poppers usage safer by encouraging competition from other sophisticated chemical and pharmaceutical companies, not just the small-time manufacturers that are willing to take the risk. For example, while amyl nitrite was available on store shelves in the 1960s, Revlon, Inc. developed and patented differently scented alternatives of amyl nitrites, presumably with the assumption that amyl nitrites would stay widely available as over-the-counter products.[355] Separately, unfavorable attitudes by large pharmaceutical companies towards choosing the LGBTQ+ community as a worthwhile consumer group for marketing have changed since the 1960s. In the 1960s, Burroughs-Wellcome, a big pharma manufacturer of amyl nitrite, objected to growing recreational use of their product due to over-the-counter availability, and asked the FDA to reinstate the prescription requirement for amyl nitrite.[356]  After the HIV/AIDS crisis began in the 1980s, large pharmaceutical companies have since thrived by providing treatments and preventatives for the LGBTQ+ community.[357]

Biopharmaceutical companies like Gilead Sciences, Inc., have built their brands in part on developing drugs that largely support LGBTQ+ communities.[358] The HIV/AIDS product sales for Gilead Sciences “increased 4% to $4.7 billion in the third quarter of 2023 compared to the same period in 2022”[359] despite record levels of hate internationally against the LGBTQ+ community during the same period.[360] LGBTQ+ consumers have taken advantage of healthcare innovations targeted at them, like HIV PrEP. Therefore, multinational manufacturers are likely to jump on the opportunity to create a legitimate and safer market for poppers. In this light, poppers legalization will open the doors for this untapped market to be innovated for drug safety by the best scientists in the industry.

Just as legalization and regulation of poppers would encourage competition, it would encourage the existing poppers manufacturers to improve their product safety or risk being pushed out of the market. For example, the current manufacturers would be incentivized to take new care, as they would have to face FDA inspections and approvals to continue selling their products in a legally opened yet regulated poppers marketplace.

Nevertheless, the Australian LGBTQ+ community leaders were rightfully concerned about a questionable availability of poppers in the immediate aftermath of their poppers protection regime change.[361] Therefore, the United States should provide an interim period after poppers are legalized where the current poppers regime is protected until at least one over-the-counter amyl nitrite or doctor-prescribed alkyl nitrite poppers drug is approved by the FDA.[362]

Moreover, legalization would solve the central trademark law issue examined in this Note.[363] If poppers were unquestionably legal to distribute or use, then the unlawful use concern would become moot. Further, there would be no need for poppers companies to register trademarks using alternative descriptions for poppers’ true commercial purpose: vasodilation.[364] Pac-West and AFAB could then compete with others in an open market, maintain their trademarks, market their products transparently to consumers, and be appropriately regulated by health authorities to meet consumer safety standards.

Closing Thoughts

Despite many governments’ attempts to ban them, poppers have proven that they are here to stay. Poppers are core to the culture of the LGBTQ+ community globally, and they are growing in popularity in other communities too. While governments like the United States ban poppers with their criminal hand, they have simultaneously protected them under their intellectual property hand of trademark, creating a tension between the two. Amyl nitrite, specifically, was safely used in the treatment of chest pain for one hundred years before poppers became core to LGBTQ+ culture fifty years ago. Governments then made the use of alkyl nitrites less safe in response to the public’s adoption of poppers. This allowed an unregulated global poppers market to flourish.

These ineffective bans have only harmed the LGBTQ+ community and other communities of poppers users. Specifically, these bans reflect stigma against consensual, responsible use of drugs that facilitate anal sex. They deny regulatory authorities’ opportunity to improve poppers consumer product safety. And without any real enforcement, they concentrate economic power over poppers in the hands of few unregulated manufacturers that have accumulated trademark registrations.

Instead, governments should consider learning from Australia’s approach to poppers regulations, particularly Australia’s willingness to engage with the general public and LGBTQ+ community on the nuances of this topic. Governments, including the United States, should return amyl nitrite to pharmacy store shelves and grant prescription-only status to the other, riskier alkyl nitrites. Merely repealing the existing bans would leave the United States with the same legal gray area for poppers as in the United Kingdom, who have chosen neither to ban nor allow under regulation the sale or use of poppers. Express legalization is key to advancing a new market of safer poppers products.

Legalization would also resolve the current obstacles in trademark law, namely the unlawful use requirement, by allowing manufacturers to register poppers for their actual use. Once poppers are legalized, more research, both directly by the FDA and from sophisticated corporate entities, can be conducted into methods to improve poppers and provide sufficient warnings and protections for consumers. IP law is no substitute for regulation because the FDA—not the USPTO—should be making health decisions.

Trademarks have been used to maintain an uneasy status quo in light of the current bans on poppers. But as one drug safety advocate in Australia said during TGA deliberation on poppers, “The simple answer is: we don’t get any control by banning a substance, by prohibiting it.”[365] By banning poppers, we only place poppers in the shadows.

Exhibit 1: Table of Poppers Trademarks in the United States

Please see the PDF version of the Note to access the Exhibit.

Copyright © 2024 Lawrence Myung and William P. Kasper

             *     Lawrence Myung J.D. 2024, University of California, Berkeley, School of Law. I would like to personally thank Adam Zmith and David Mack for their invaluable research and writing, which first brought our attention to this issue. Thank you also to Dean Erwin Chemerinsky for always believing in and encouraging me throughout my law school journey. Finally, thank you to the editors of the California Law Review for their feedback and guidance in editing this Note.

           **     William P. Kasper, J.D. 2024, University of California, Berkeley, School of Law, B.S. Chemical Engineering, Rice University, 2015. I join Lawrence’s thanks and thank Lawrence for inviting me to be a part of this project. I would like to thank Professors Peter Menell and Allison Schmitt for their mentorship and support in my law school journey. Thank you to the California Law Review editors for their very helpful comments for our revisions of this Note.

           [1].     Grindr, 69 Questions with Charli XCX, YouTube (Dec. 5, 2019), https://www.youtube.com/watch?v=5-jKvb69Wtc&ab_channel=Grindr [https://perma.cc/3BUZ-EX3N].

           [2].     Adam Zmith, Deep Sniff: A History of Poppers and Queer Futures 13 (2021).

           [3].     See Troye Sivan Updates (@UpdatedTS), X (June 7, 2023), https://x.com/updatedts/
status/1666576313677758472?s=46 [https://perma.cc/WMP5-YS7H].

           [4].     See, e.g., Troye Sivan (@TroyeSivan), TikTok (Aug. 2, 2023), https://www.tiktok.com/
@troyesivan/video/7262886044545355054 [https://perma.cc/W2GY-2YK3]; EMouTH Gossip (@EM_Gossip), X (Aug. 10, 2023), https://x.com/em_gossip/status/1689875425928122368?s=46 [https://perma.cc/TL2V-KXFC].

           [5].     Bernardo Sim, Jan Lip Synced to Troye Sivan’s ‘Rush’ Dressed as a Poppers Bottle, Out (July 18, 2023), https://www.out.com/drag/jan-drag-race#toggle-gdpr [https://perma.cc/B937-7EV7].

           [6].     See Saturday Night Live, Trove Sivan Sleep Demon, YouTube (Nov. 11, 2023), https://www.youtube.com/watch?v=TzBvtMzWNL4&ab_channel=SaturdayNightLive [https://perma.cc/R34G-VLHW] (After a woman asks her doctor why she’s being plagued by a sleep demon of Troye Sivan (played by host Timothée Chalamet), the doctor responds “Are you a straight woman who’s tried poppers once?”).

           [7].     Throughout this Article, we use the terms gay and LGBTQ+ community interchangeably in relation to poppers. Historically, poppers have been reported primarily in association with use by “homosexual” men. Since then, their use and association has expanded to include other members in the LGBTQ+ community. See Zmith, supra note 2, at 16–17.

           [8].     Id. at 49–54.

           [9].     See, e.g., John Lauritsen & Hank Wilson, Death Rush: Poppers & AIDS (1986) (“With the outbreak of the AIDS epidemic, medical researchers began to suspect that poppers may play a role in causing AIDS in gay men-either as the primary cause or in conjunction with other factors.”).

         [10].     Stephen Daw, Here’s a Video Of Charli XCX Literally Yelling ‘Gay Rights’ While Holding Poppers, Billboard (Sept. 16, 2019), https://www.billboard.com/culture/pride/charli-xcx-gay-rights-poppers-video-8530074/ [https://perma.cc/3RBB-25GG]; see also Grindr, supra note 1.

         [11].     RUSH, Registration No. 5,217,553; RUSH ORIGINAL, Registration No. 5,084,851.

         [12].     Stephen J. Sansweet, A New Way to Glow and Giggle and Get a Headache Besides, Wall St. J. (Oct. 10, 1977) [https://perma.cc/F7HU-KPT9].

         [13].     Id.; see also David Mack, This Man Does Not Make Poppers, BuzzFeed News (July 27, 2021), https://www.buzzfeednews.com/article/davidmack/poppers-factory [https://perma.cc/72T3-EETQ] (investigating the poppers industry and the people behind it).

         [14].     See Sansweet, supra note 12.

         [15].     See id.; Zmith, supra note 2, at 8–11.

         [16].     See Austin Le, Andrew Yockey & Joseph J. Palamar, Use of “Poppers” Among Adults in the United States, 2015-2017, 52 J. Psychoactive Drugs 433, 435 (2020).

         [17].     In fact, one of the co-authors was recently at a musical festival where a girl asked her friend group for “Poppers please!”; see Shane O’ Neill, Poppers, Once a Fixture at Gay Clubs, Now a ‘Party Girl’ Favorite, N.Y. Times (May 23, 2022), https://www.nytimes.com/2022/05/18/style/poppers-once-a-fixture-at-gay-clubs-now-a-party-girl-favorite.html [https://perma.cc/98ZH-BR2X]; see also Saturday Night Live, supra note 6.

         [18].     See FDA, Ingesting or Inhaling Nitrite “Poppers” Can Cause Severe Injury or Death, Consumer Updates (July 15, 2021), https://www.fda.gov/consumers/consumer-updates/ingesting-or-inhaling-nitrite-poppers-can-cause-severe-injury-or-death [https://perma.cc/9CFD-FY5N].

         [19].     See 15 U.S.C. §§ 2057a–b.

         [20].     Louisiana makes personal inhalation and possession of poppers illegal with a criminal penalty of up to five hundred dollars and/or six months in person. La. Rev. Stat. § 40:989.

         [21].     See Zmith, supra note 2, at 49.

         [22].     See Mack, supra note 13.

         [23].     In 2021, the FDA stated that they “will continue tracking reports of adverse events resulting from the ingestion or inhalation of nitrite ‘poppers’ and will take appropriate actions to protect the public health. The agency also has contacted its federal partners alerting them of the recent adverse event reports.” This reflects the FDA’s historical stance of discouraging use but no broader regulation. FDA, FDA Advises Consumers Not to Purchase or Use Nitrite ‘Poppers’, Alerts, Advisories & Safety Info. (June 24, 2021), https://www.fda.gov/food/alerts-advisories-safety-information/fda-advises-consumers-not-purchase-or-use-nitrite-poppers. [https://perma.cc/R3QH-H2H7].

         [24].     See, e.g., Criminal Complaint at 1–2, United States v. Daniel Guida, Jr. and Andrew Garey Webb, No. 96-1964-B, Dkt. 1 (S.D. Cal. Oct. 23, 1996) (co-defendants pled to selling poppers through the mail and were put on federal probation); see also United States v. Schneiderman, 777 F. Supp. 258, 263 n.1 (S.D.N.Y. 1991) (referencing RUSH and 15 U.S.C. § 2057a, but only to note that “sales of RUSH” were legal at the time).

         [25].     See Mack, supra note 13.

         [26].     See Pac-West Distrib. NV LLC v. AFAB Indus. Servs., Inc., No. 19-3585, 2023 WL 3611536, at *6–7 (E.D. Pa. May 22, 2023).

         [27].     One of the current poppers brand trademarks is the word mark QUICKSILVER, see Exhibit 1, but it’s a poor misnomer for the actual product. The term “quicksilver” was in Old English the more common name for the highly neurotoxic metal better known today as mercury. See, e.g., Quicksilver, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/quicksilver [https://perma.cc/5J2S-UT8J] (last visited Jan. 13, 2024) (providing explanation under the “Word Origin” section). Mercury is not the active ingredient of poppers and should not be present in them.

         [28].     See Daniel Demant & Oscar Oviedo-Trespalacios, Harmless? A Hierarchical Analysis of Poppers Use Correlates Among Young Gay and Bisexual Men, 38 Drug & Alcohol Rev. 465, 465 (2019).

         [29].     See IUPAC, Alkyl groups, in Compendium of Chemical Terminology (A. D. McNaught, A. Wilkinson, and S. J. Chalk ed., 2019), available at https://goldbook.iupac.org/terms/
view/A00228 [https://perma.cc/5S2V-Y7KB]; see also Alkyl, Cambridge Advanced Learner’s Dictionary & Thesaurus, https://dictionary.cambridge.org/us/dictionary/english/alkyl [https://
perma.cc/PV3Z-D69L] (last visited Aug. 13, 2023).

         [30].     Mack, supra note 13 (“Too few carbons and it will evaporate too easily — too many, and the liquid won’t vaporize at all.”).

         [31].     See Demant & Oviedo-Trespalacios, supra note 28, at 465.

         [32].     See Anthony R. Butler & Martin Feelisch, Therapeutic Uses of Inorganic Nitrite and Nitrate: From the Past to the Future, 117 Circulation 2151, 2151–52 (2008).

         [33].     See id.

         [34].     See id. at 2151.

         [35].     Id.

         [36].     Hannah Ewens, We Asked an Expert How Easy It Is to Make Poppers, Vice (Jan. 22, 2016), https://www.vice.com/en/article/5gjagz/we-asked-an-expert-how-easy-it-is-to-make-poppers [https://perma.cc/YQ6A-FF67].

         [37].     See, e.g., AllChemystery, Preparation of Isopropyl Nitrite, YouTube (Jan. 13, 2017), https://www.youtube.com/watch?v=RpMENDo8KRo [https://perma.cc/4NSX-UAEF] (showing lab synthesis of one form of poppers).

         [38].     Compare PubChem, Compound Summary: Isoamyl Nitrite, Nat’l Libr. of Med., available at https://pubchem.ncbi.nlm.nih.gov/compound/Amyl-nitrite [https://perma.cc/FR28-D8QA] (last visited Aug. 20, 2023) (describing amyl nitrite’s potential use as a vasodilator), with PubChem, Compound Summary: Isobutyl Nitrite, Nat’l Libr. of Med., available at https://pubchem.ncbi.nlm.nih.gov/compound/Isobutyl-nitrite [https://perma.cc/KZF2-Y2N8] (last visited Aug. 20, 2023) (describing an illicit use of isobutyl nitrite as “aphrodisiac inhalants”), and PubChem, Compound Summary: Isopropyl nitrite, Nat’l Libr. of Med., available at https://pubchem.ncbi.nlm.nih.gov/compound/Isopropyl-nitrite [https://perma.cc/52C8-5SM8] (last visited Aug. 20, 2023) (omitting any psychoactive or illicit use of isopropyl nitrite).

         [39].     See, e.g., T.S. Bal, D.R. Gutteridge, A.A. Hiscutt, B. Johnson & I. Oxley, Analysis of Alkyl Nitrites by Capillary Gas Chromatography-Mass Spectrometry, 28 J. Forensic Sci. Soc’y 185, 187 (describing how pentyl and amyl nitrites, as isomers of pentyl nitrite, “can be differentiated from one another by comparison of their complete [chemical property] spectra”).

         [40].     See Poppers-Online.CH, What are the Ingredients of Poppers, Poppers-Online.CH Blog, https://poppers-online.ch/en/blog/what-are-the-ingredients-of-poppers/ [https://perma.cc/WQ24-EHBV] (describing pentyl nitrite, which is structurally similar to amyl nitrite, as “less harmful to human health” especially compared to the popular yet “very toxic” smaller-molecule isopropyl and isobutyl nitrites, which are discussed later in this Technical Primer).

         [41].     Id.; see also Isopropyl and Propyl Nitrites, infra Part I.A.3.

         [42].     See Frank Romanelli, Kelly M. Smith, Alice C. Thornton & Claire Pomeroy, Poppers: Epidemiology and Clinical Management of Inhaled Nitrite Abuse, 24 Pharmacotherapy 69, 75–76 (2004) (providing a regulatory and clinical history of poppers).

         [43].     See Butler & Feelisch, supra note 32, at 2151.

         [44].     Id. at 2153–54.

         [45].     See id.

         [46].     See id. at 2155.

         [47].     See PubChem, Compound Summary: Isobutyl Nitrite, supra note 40.

         [48].     See Romanelli et al., supra note 42, at 70.

         [49].     See Demant & Oviedo-Trespalacios, supra note 28, at 465–66; see also D. C. Bradley, Molecular Weight and Volatility, Nature 323, 323 (1954), https://www.nature.com/articles/174323a0 [https://perma.cc/9A2M-Y54Z] (acknowledging the “widely accepted view that volatility decreases with increase in molecular weight,” or that volatility increases as molecular size decreases, in raising a theory explaining exceptions to that view).

         [50].     See Susan C. Orlean, Doctors Say It Can Kill You, but Butyl Nitrite Is a Legal High in Portland, Willamette Week (June 4, 2022), https://www.wweek.com/news/2022/06/04/doctors-say-it-can-kill-you-but-butyl-nitrite-is-a-legal-high-in-portland/ [https://perma.cc/VJ9V-SU8E].

         [51].     See id.

         [52].     See Romanelli et al., supra note 42, at 76; see also J. Osterloh & D. Goldfield, Butyl Nitrite Transformation In Vitro, Chemical Nitrosation Reactions, and Mutagenesis, 8 J. Anal. Toxicol. 164, 164–69 (1984).

         [53].     See Romanelli et al., supra note 42, at 70.

         [54].     See id.; see also 15 U.S.C. § 2057a (banning of butyl nitrite).

         [55].     See Poppers-Online.CH, supra note 40; see also Susannah L. Davies, Josanne Salina, John Ramsey & David W. Holt, Analysis of the Volatile Alkyl Nitrites (2009), http://www.the-ltg.org/data/uploads/posters/alkyl-nitrites_final.pdf [https://perma.cc/WT99-6VTR] (describing how “an inhalation study on rats to determine the lethal doses of n-propyl, butyl, iso-butyl and iso-amyl nitrite showed” higher concentrations of poppers required to kill the rats as number of carbons increased, with n-propyl requiring the lowest concentration to kill half the rat population).

         [56].     See, e.g., Anna M. Gruener, Megan A. R. Jeffries, Zine El Housseini & Laurence Whitefield, Poppers Maculopathy, 384 Lancet 1606, 1606 (June 20, 2014) (documenting a case of central visual loss in both eyes following the use of isopropyl nitrite poppers with no prior ocular history and citing rise of isopropyl nitrite as source of ocular damage).

         [57].     See Butler & Feelisch, supra note 32, at 2152.

         [58].     See id.

         [59].     Id.

         [60].     See Romanelli et al., supra note 42, at 69–70.

         [61].     See id. at 75.

         [62].     See Butler & Feelisch, supra note 32, at 2151–52.

         [63].     See Romanelli et al., supra note 42, at 75.

         [64].     Id.

         [65].     Id.

         [66].     See id.

         [67].     See Rachel Brazil, What are Poppers and Are They Legal?, Chemistry World (Sept. 16, 2021), https://www.chemistryworld.com/news/explainer-the-science-of-alkyl-nitrites-aka-poppers/
4014395.article [https://perma.cc/8AUY-GX7C].

         [68].     See Romanelli et al., supra note 42, at 70.

         [69].     See id.

         [70].     Zmith, supra note 2, at 48.

         [71].     Id.; Mack, supra note 13.

         [72].     Zmith, supra note 2, at 3–5.

         [73].     See Orlean, supra note 50.

         [74].     See Romanelli et al., supra note 42, at 70.

         [75].     See Orlean, supra note 50.

         [76].     See Romanelli et al., supra note 42, at 70.

         [77].     See, e.g., U.S. Patent No. 3,106,511 (issued Oct. 8, 1963, to Revlon, Inc.).

         [78].     See Romanelli et al., supra note 42, at 70.

         [79].     See Zmith, supra note 2.

         [80].     Id. at 8–9.

         [81].     Id. at 51.

         [82].     See Mack, supra note 13.

         [83].     Id.

         [84].     See Sansweet, supra note 12.

         [85].     Zmith, supra note 2, at 8.

         [86].     See Sansweet, supra note 12.

         [87].     Id.; TIME, Nation: Rushing to a New High (July 17, 1978), https://content.time.com/time/subscriber/article/0,33009,916269,00.html [https://perma.cc/C3GZ-PLL3].

         [88].     Zmith, supra note 2, at 8 (quoting Jack Fristcher, Gay Pioneers; How Drummer Magazine Shaped Gay Popular Culture 1965-1999 (2017)).

         [89].     Mack, supra note 13.

         [90].     See Zmith, supra note 2, at 51–58.

         [91].     See generally John Lauritsen & Hank Wilson, Poppers & AIDS (1986) (providing numerous studies examining the relationship between poppers usage and the weakening of the immune system).

         [92].     Poppers Maker Dies of AIDS, Bay Area Rep. (May 16, 1985), https://archive.org/details/
BAR_19850516/page/n11/mode/2up [https://perma.cc/MAY5-4ESA].

         [93].     15 U.S.C. § 2057a.

         [94].     15 U.S.C. § 2057b.

         [95].     15 U.S.C. § 2057b(c).

         [96].     See Exhibit 1.

         [97].     Mack, supra note 13.

         [98].     FDA, supra note 18.

         [99].     FDA (@US_FDA), X (May 24, 2023), https://twitter.com/US_FDA/status/1661367789322
379264?s=20 [https://perma.cc/AEW3-VG3M].

      [100].     Nick Logan, The FDA Says People are Confusing Poppers with Energy Shots, and Dying. Experts Want Proof, CBC (June 4, 2023), https://www.cbc.ca/news/health/fda-poppers-energy-shots-warning-1.6863960 [https://perma.cc/HU6M-U58B].

      [101].     Mack, supra note 13.

      [102].     Trademark Initial Application Form, USPTO, https://www.uspto.gov/trademarks/apply/
initial-application-forms [https://perma.cc/WGD5-MGZN].

      [103].     See Exhibit 1, a non-exhaustive list of all poppers brands that have been or are currently registered by the USPTO and two non-US countries.

      [104].     Commerce is statutorily defined under 15. U.S.C. § 1127 as “all commerce which may lawfully be regulated by Congress.” 15 U.S.C. §§ 1051, 1127; see USPTO, Trademark Manual of Examining Procedure § 907.

      [105].     See Robert A. Mikos, Unauthorized and Unwise: The Lawful Use Requirement in Trademark Law, 75 Vand. L. Rev. 161, 165 (2022) (“But not one of those entrepreneurs can register its mark with the PTO, because the sale of marijuana remains illegal under Federal law.”).

      [106].     In re Stanley Bros. Soc. Enters., LLC, 2020 U.S.P.Q.2d 10658, *16 (T.T.A.B. 2020).

      [107].     See Mikos, supra note 105, at 163–64.

      [108].     Stanley Bros. Soc. Enters., 2020 U.S.P.Q.2d 10658, at *10 (citing In re Morgan Brown, 119 U.S.P.Q.2d 1350, 1351 (T.T.A.B. 2016)).

      [109].     37 C.F.R. § 2.69 (1989).

      [110].     See, e.g., Satinine Societa in Nome Collettivo di S.A. e M. Usellini v. P.A.B. Produits et Appareils de Beaute, 209 U.S.P.Q. 958, 964 (T.T.A.B. 1981).

      [111].     15 U.S.C. §§ 2057a–b.

      [112].     The first time the USPTO officially brought up its possible use as a recreational drug was not until 2012. Office Action Outgoing (Dec. 27, 2012), Serial No. 85,715,189, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85715189&docId=OOA20121227161553&linkId=13#docIndex=12&page=1 [https://perma.cc/G5DF-VWZ2].

      [113].     LOCKER ROOM, Registration No. 1,018,686.

      [114].     Id.

      [115].     RUSH, Registration No. 1,112,095.

      [116].     Id.

[117].  LR, Registration No. 1,115,506; PWD, Registration No. 1,219,661.

      [118].     BOLT, Registration No. 1,399,190.

      [119].     Zmith, supra note 2, at 10–12.

      [120].     Bay Area Rep., supra note 92, at 12.

      [121].     RAM, Registration No. 1,748,106; HARDWARE, Registration No. 1,765,515; QUICK SILVER, Registration No.1,748,105.

      [122].     Id.

[123].    POP’RS, Serial No. 75,579,280.

      [124].     POWER PAK PELLET, Registration No. 2,538,037; LOCKER ROOM, Registration No. 2,716,158.

      [125].     LOCKER ROOM, Registration No. 1,018,686.

      [126].     See Zmith, supra note 2, at 11–12; Trademark Assignment Assignor Details, Grand Canyon Products, USPTO, https://assignments.uspto.gov/assignments/q?db=tm&asnrd=GRAND%20
CANYON%20PRODUCTS,%20INC. [https://perma.cc/T7WB-X6T8].

      [127].     See Trademark Assignment Details, Reel/Frame: 4458/0369, USPTO (Jan. 21, 2011), https://assignments.uspto.gov/assignments/q?db=tm&reel=4458&frame=0369 [https://perma.cc/J6DK-K5TL] (Sky Ventures taking a security interest in the marks RUSH, BOLT, QUICK SILVER, HARDWARE, RAM, POWER-PAK PELLET, RU).

      [128].     Sky Ventures, Inc. Business Information, Ind. Sec’y of State, https://bsd.sos.in.gov/
PublicBusinessSearch/BusinessInformationFromIndex (search “Sky Ventures Inc.” on the Indiana Secretary of State’s public business search) (last visited Mar. 9, 2024). 

      [129].     The registered agent, Charles Miller, unclear if blood-related to Joseph Miller, was also a registered agent for Pac-West Distributors Inc., suggesting some crossover between the two corporate entities. Pac West Distributors, Inc. Business Information, Ind. Sec’y of State, https://bsd.sos.in.gov/PublicBusinessSearch (last visited Mar. 9, 2024).

      [130].     See Valerie Brennan & Carmel Corcoran, Obtaining a Security Interest in a Trademark: Comparison Under US & UK Practice, 62 INTA Bulletin (2007).

      [131].     PWD, Registration No. 4,187,497.

      [132].     Id.

      [133].     BOLT, Registration No. 4,420,695; HARDWARE, Registration No. 4,549,976; IRON HORSE, Registration No. 4,438,442; RAM, Registration No. 4,323,757.       

      [134].     See, e.g., Response to Office Action (June 11, 2013), Serial No. 85,707,959, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707959&docId=ROA20130611195021&linkId=9#docIndex=8&page=1 [https://perma.cc/3TWY-JGTL].

      [135].     Grand Canyon’s 2012 application for HARDWARE was also subject to an Office Action, but this was based on the goods description being descriptive. The Action resulted in the examiner amending the mark to only cover nail polish remover. Although, this application again ignores the fact that their product is actually intended for recreational drug use. Examiners Amendment (Feb. 2, 2014), Serial No. 85,707,956, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707956&
docId=EXA20140202115104&linkId=10#docIndex=9&page=1 [https://perma.cc/UNZ4-WP52].

      [136].     Office Action Outgoing (Dec. 14, 2012), Serial No. 85,707,959, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707956&docId=OOA20121214114919&linkId=15#docIndex=14&page=1 [https://perma.cc/QB6A-EXQU].

      [137].     Id.

      [138].     Response to Office Action (June 4, 2013), Serial No. 85,707,959, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707956&docId=ROA20130604185754&linkId=13#docIndex=12&page=1 [https://perma.cc/X37U-R9B5].

      [139].     Id.

      [140].     Id.

      [141].     Id.

      [142].     BOLT, Registration No. 4,420,695.

      [143].     Office Action Outgoing (Dec. 14, 2012), Serial No. 85,707,927, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707927&docId=OOA20121214102723&linkId=17#docIndex=16&page=1 [https://perma.cc/F529-3SVE].

      [144].     Id.

      [145].     Id; see also Office Action Outgoing (Dec. 13, 2012), Serial No. 85,707,940, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707940&docId=OOA20121213214311&linkId=18#docIndex=17&page=1 [https://perma.cc/4JFW-GDSC] (making a similar argument of prior registration for IRON HORSE to overcome a likelihood of confusion refusal).

      [146].     Response to Office Action (June 14, 2013), Serial No. 85,707,927, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85707927&docId=ROA20130615174250&linkId=16#docIndex=15&page=1 [https://perma.cc/7LFM-VKUH].

[147].   LOCKER ROOM, Serial No. 85,271,865.

[148].   There is no apparent relation with Hassing’s original LOCKER ROOM.

[149].   Notice of Opposition (Dec. 7, 2011), Serial No. 85,271,865, USPTO TSDR, https://uspto.gov [https://perma.cc/D46Y-FMVH].

[150].   Id.

[151].   Notice of Default (Mar. 16, 2012), Serial No. 85,271,865, USPTO TSDR, https://tsdr.uspto.gov/caseviewer/pdf?caseId=85271865&docIndex=1&searchprefix=sn#docIndex=1 [https://perma.cc/D8GT-MD6C].

[152].    Interestingly, current Canadian law states that alkyl nitrites can only be used when prescribed by a doctor, but there are no approved products sold as poppers. However, this has clearly not stopped poppers companies from filing trademarks and consumers from procuring them. See Logan, supra note 100; see also Exhibit 1.

      [153].     AMSTERDAM, Serial No. 85,512,435; BLUE BOY, Serial No. 85,512,449; JUNGLE JUICE, Serial No. 85,512,464; ROCHEFORT, Serial No. 85,512,443.

[154].    Interestingly, Lockerroom Marketing has a valid registered trademark for both RUSH and PWD covering “leather cleaners” in Canada, which seems to create a possible risk of consumer confusion with Pac-West, but how that would be resolved is beyond the scope of this Note. See RUSH, C.A. Registration No. 1,005,982; PWD, C.A. Registration No. 1,000,174.

      [155].     A consent agreement is when two parties agree that the marks can coexist without confusion to the relevant public, typically through negotiating with one another. TEAS Request Consideration (Apr. 15, 2013), Serial No. 85,512,464, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=
sn85512464&docId=RFR20130415173509&linkId=22 [https://perma.cc/9ZX4-YPQZ].

      [156].     AMSTERDAM, Serial No. 85,512,435; BLUE BOY, Registration No. 85,512,449; JUNGLE JUICE, Registration No. 85,512,464; ROCHEFORT, Registration No. 85,512,443.

      [157].     Response to Office Action (Aug. 28, 2012), Serial No. 85,477,802, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85477802&docId=ROA20120828182852&linkId=16#docIndex=15&page=1 [https://perma.cc/6WT8-GNU4].

      [158].     Office Action Outgoing (Dec. 27, 2012), Serial No. 85,715,189, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85715189&docId=OOA20121227161553&linkId=13#docIndex=12&page=1 [https://perma.cc/G5DF-VWZ2].

      [159].     Id.

      [160].     Id.

      [161].     Id.

      [162].     Response to Office Action (June 24, 2013), Serial No. 85715189, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn85715189&docId=ROA20130624173419&linkId=12#docIndex=11&page=1 [https://perma.cc/MU4Q-B3PC].

      [163].     See Exhibit 1.

      [164].     See Trademark Assignment Assignor Details, Pac-West Distributing NV LLC, USPTO, https://assignments.uspto.gov/assignments/q?db=tm&asned=PAC-WEST%20DISTRIBUTING%20
NV%20LLC [ https://perma.cc/JPV3-YTPP].

      [165].     SUPER RUSH, Registration No. 86,599,429; GOLD RUSH, Registration No. 86,599,444; SUPER RUSH, Registration No. 5,061,890; NEVER FAKE IT!, Registration No. 5,061,968.

      [166].     AFAB Indus. Servs., Inc. v. Pac-West Distrib. NV LLC, No. 91224272 (T.T.A.B. Nov. 26, 2015) (AFAB’s Motion for Summary Judgement Deemed Premature), https://ttabvue.uspto.gov/
ttabvue/v?pno=91224272&pty=OPP&eno=1 [https://perma.cc/AV2E-JQJB].

      [167].     First Amended Complaint at 12, Pac-West Distrib. NV LLC v. AFAB Indus. Servs., Inc., No. 19-cv-03585 (E.D. Pa. Sept. 14, 2019), No. 11.

      [168].     BOLT, Registration No. 86,758,546.

      [169].     Office Action Outgoing (Jan. 13, 2016), Serial No. 86758700, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn86758700&docId=OOA20160113140607&linkId=4#docIndex=3&page=1 [https://perma.cc/RP9D-GHEW].

      [170].     Id.

      [171].     This is in reference to the mark at question being called GOLD RUSH. Id.

      [172].     Id.

      [173].     Id.

      [174].     Id.

      [175].     Id.

      [176].     Request for Express Abandonment (July 12, 2016), Serial No. 86758700, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn86758700&docId=REA20160713093011&linkId=2#docIndex=1&page=1 [https://perma.cc/FJ7T-PRT8].

      [177].     See Exhibit 1.

      [178].     In the Office Action, the Examining Attorney asks the applicant to answer the following: “Are applicant’s identified goods intended for ingestion or inhalation?” “Are applicant’s identified goods intended for use as ‘poppers,’ which are alkyl nitrites/isobutyl nitrite that is inhaled for recreational purposes, especially in preparation for sex?” “Are the applicant’s goods lawful pursuant to The Anti-Drug Abuse Act of 1988?” Office Action Outgoing (Jan. 12, 2016), Serial No. 86758504, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn86758504&docId=OOA2016011212
3957&linkId=14#docIndex=13&page=1 [https://perma.cc/24W2-MNHF].

      [179].     Response to Office Action (July 12, 2016), Serial No. 86758590, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn86758590&docId=ROA20160713172906&linkId=11#docIndex=10&page=1 [https://perma.cc/C4TW-ZRQ3].

      [180].     TEAS Plus New Application (Oct. 26, 2016), Serial No. 87216302, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn87216302&docId=FTK20161029082324&linkId=9#docIndex=8&page=1 [https://perma.cc/SKZ2-25KK].

      [181].     Id. From an initial search, no readily available public evidence was found as to whether Pac-West currently sells or has ever sold incense sticks. Additionally, there is no readily available public evidence that one can truly get a poppers high from incense sticks.

      [182].     See Exhibit 1.

      [183].     Examination of Your Application, USPTO, https://www.uspto.gov/trademarks/basics/
examination-application [https://perma.cc/PUT4-DKE7].

      [184].     LOCKERROOM, Registration No. 97,759,667; JJ LOCKERROOM, Registration No. 90,857,468.

[185].  Response to Office Action (July 12, 2016), Serial No. 86758678, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn86758678&docId=ROA20160713174640&linkId=11#docIndex=10&page=1 [https://perma.cc/W2DN-V5M9].

      [186].     Response to Office Action (Oct. 28, 2022), Serial No. 90,857,468, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn90857468&docId=ROA20221028192354&linkId=5#docIndex=4&page=1 [https://perma.cc/E9DZ-UYKV].

      [187].     Id.

      [188].     Suspension Letter (Dec. 6, 2022), Serial No. 90,857,468, USPTO TSDR https://tsdr.uspto.gov/documentviewer?caseId=sn90857468&docId=SUSLT20221206124035&linkId=2#docIndex=1&page=1 [https://perma.cc/24N7-7ESM].

      [189].     Suspension Letter (Dec. 18, 2023), Serial No. 97,759,667, USPTO TSDR, https://tsdr.uspto.gov/documentviewer?caseId=sn97759667&docId=SUSLT20231218111646&linkId=1#docIndex=0&page=1 [https://perma.cc/P3EZ-DPZ3].

      [190].     AFAB Indus. Servs., Inc. v. Pac-West Distrib. NV LLC, No. 92082914 (T.T.A.B. July 28, 2023) (AFAB’s File of Opposition), https://ttabvue.uspto.gov/ttabvue/v?pno=92082914&pty=
CAN&eno=15 [https://perma.cc/KG6U-GYLJ].

      [191].     AFAB Indus. Servs., Inc. v. Pac-West Distrib. NV LLC, No. 92082914 (T.T.A.B. Jan. 2, 2024) (Suspension Pending Disposition of Civil Action), https://ttabvue.uspto.gov/ttabvue/v?pno=9208
2914&pty=CAN&eno=15 [https://perma.cc/KG6U-GYLJ].

      [192].     Id. at 5.

      [193].     Id. at 3–4.

      [194].     See infra Part II.A.2.a.

      [195].     Pac-West Distrib. NV LLC v. AFAB Indus. Servs., 674 F. Supp. 3d 132 (E.D. Pa. 2023).

      [196].     See Farr v. Pac-West Distrib. NV LLC, No. 2:16-cv-00175 (E.D. Pa. 2016).

      [197].     See First Amended Complaint at 1, Pac-West Distrib. NV LLC v. AFAB Indus. Servs, Inc., No. 19-3585 (E.D. Pa. Sept. 14, 2019), No. 11.

      [198].     See Criminal Complaint at 1–2, United States v. Daniel Guida, Jr. and Andrew Garey Webb, No. 96-1964-B, Dkt. 1 (S.D. Cal. Oct. 23, 1996).

      [199].     Pac-West Distrib. NV LLC v. AFAB Indus. Servs, Inc., No. 19-3584, 2022 WL 20804019, *8 (E.D. Pa. Mar. 11, 2022) (motion granting Pac-West’s partial motion to dismiss).

      [200].     First Amended Complaint at 1, Pac-West Distrib. NV LLC v. AFAB Indus. Servs, Inc., No. 19-3585 (E.D. PA. Sep. 14, 2019).

      [201].     Id.

      [202].     Id. at 2.

      [203].     Pac-West Distrib. NV LLC v. AFAB Indus. Servs., Inc., No. 19-3584, 2020 WL 4470447 (E.D. Pa. Aug. 4, 2020) (motion denying AFAB’s motions to dismiss and consolidate); Pac-West Distrib. NV LLC v. AFAB Indus. Servs, Inc., No. 19-3584, 2022 WL 717276 (E.D. Pa. Mar. 10, 2022) (motion granting Pac-West’s partial motion to dismiss).

      [204].     Pac-West Distrib. NV LLC, No. 19-3584, 2022 WL 717276 (E.D. Pa. Mar. 10, 2022).

      [205].     Motion to Dismiss at 20, Pac-West Distrib. NV LLC v. AFAB Indus. Servs., Inc., No. 19-3584 (E.D. Pa. Oct. 30, 2019), No. 19.

      [206].     Id.

      [207].     Id.

      [208].     Pac-West Distrib. NV LLC v. AFAB Indus. Servs, Inc., No. 19-3584, 2020 WL 4470447, at *15 (E.D. Pa. Aug. 4, 2020) (motion denying AFAB’s motions to dismiss and consolidate).

      [209].     Id. at *14 n.15.

      [210].     Id. at *15.

      [211].     Id.

      [212].     Pac-West Distrib. NV LLC v. AFAB Indus. Servs., Inc., 674 F. Supp. 3d 132 (E.D. Pa. 2023) (motion finding summary judgment for Pac-West on unlawful use).

      [213].     The Ninth and Tenth Circuits have adopted the unlawful use defense, but the Fifth and Eleventh Circuits have declined to do so. The Third Circuit has neither adopted nor declined the unlawful use doctrine. Compare CreAgri, Inc. v. USANA Health Scis. Inc., 474 F.3d 626, 634 (9th Cir. 2007) (holding that dietary supplement manufacturer did not infringe competitor’s trademark because competitor’s prior use of the mark had been unlawful), and United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th Cir. 2000) (referencing the TTAB’s decision that a use in commerce under the Lanham Act protects marks “lawfully used in commerce”), with FN Herstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1087 (11th Cir. 2016) (holding that “this court has not adopted the unlawful use doctrine”), and Perry v. HJ. Heinz Co. Brands, L.L.C., 994 F.3d 466, 475 (5th Cir. 2021) (holding that “this court has not adopted the unlawful use . . . [w]e see no reason to adopt the doctrine here”).

      [214].     Pac-West Distrib. NV LLC, 674 F. Supp. 3d 132 (motion finding summary judgment for Pac-West on unlawful use).

      [215].     See, e.g., CreAgri, Inc. v. USANA Health Scis., Inc., 474 F.3d at 634  (holding that dietary supplement manufacturer did not infringe competitor’s trademark because competitor’s prior use of the mark had been unlawful).

      [216].     See, e.g., 1.3 Alkyl nitrites: Scheduling Medicines and Poisons, Australian Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin., https://www.tga.gov.au/resources/
publication/scheduling-decisions-interim/publication-interim-decisions-proposing-amend-or-not-amend-current-poisons-standard-september-2018/13-alkyl-nitrites [https://perma.cc/L7YY-XHBP] (“In Australia, [poppers] are sold under the guise of room deodorisers and cleaning solvents, and are readily available in adult shops and online.”).

      [217].     See, e.g., ‘Poppers’ sichergestellt. Polizei entdeckt 400 Flaschen des Schnüffelstoffs in Sex-Shop, Die Welt (Dec. 8, 2005); Corina Broßmann, Sexdroge Poppers: Zur Ekstase geschnüffelt, News.de (Nov. 30, 2011), https://www.news.de/reisen-und-leben/855244035/zur-ekstase-geschnueffelt/1/ [https://perma.cc/74ZJ-LFGA] (reporting German police raids on establishments that sell poppers).

      [218].     As one example, despite Canada banning the selling of poppers in 2013, the latest update on poppers raids was against a single boutique store in 2023 and was previously last updated in 2017. See, e.g., Poppers Are Unauthorized and May Pose Serious Health Risks, Health Canada (Oct. 6, 2023), https://recalls-rappels.canada.ca/en/alert-recall/poppers-are-unauthorized-and-may-pose-serious-health-risks [https://perma.cc/VT8S-6RMH];  Poppers Sold Across Canada Pose Serious Risks, Health Canada (June 30, 2017), https://recalls-rappels.canada.ca/en/alert-recall/poppers-sold-across-canada-pose-serious-risks [https://perma.cc/KK88-USQ2].

      [219].     Kanagawa Cops Nab Doctor for Importation of ‘Poppers’ Drugs, Tokyo Rep. (May 11, 2016), https://www.tokyoreporter.com/japan-news/breaking/kanagawa-cops-nab-doctor-for-importation-of-poppers-drugs/ [https://perma.cc/D9MK-K6FZ].

      [220].     For example, jurisdictions like Japan and the Philippines have more punitive drug enforcement systems, which has led the poppers trade there to largely online marketplaces. See, e.g., Kanna Hayashi, Chihiro Wakabayashi, Yuzur Ikushima & Masayoshi Tarui, Characterizing Changes in Drug Use Behaviour Following Supply Shortages of 5-Me0-DIPT, Alkyl Nitrites and New Psychoactive Substances Among Men Living with HIV in Japan, 118 Int’l J. Drug Pol’y 1, 1 (2023), https://doi.org/10.1016/j.drugpo.2023.104080 [https://perma.cc/6L78-34AP] ("After the largest ban in 2014, [poppers] were reported to have disappeared from the domestic market.”); Vincent Gregory Yu & Gideon Lasco, Neither Legal nor Illegal: Poppers as ‘Acceptable’ Chemsex Drugs Among Men Who Have Sex with Men in the Philippines, Int’l J. Drug Pol’y 1 (2023), https://doi.org/10.1016/j.drugpo.2023.104004 [https://perma.cc/GG7B-U83H] (“[T]hose who use poppers hypothetically run the risk of being considered people who use ‘dangerous’ drugs and thus subjected to the Philippines’ punitive drug regime. Paradoxically, poppers are commercially accessible in the country’s most popular online marketplaces.”).

      [221].     See Recent Failed Attempts to Ban Poppers in the United Kingdom, infra Part II.B.1.b (describing a recent U.K. controversy over poppers regulation); see also Initial 2018 Proposal to Regulate Poppers in Australia, infra Part II.B.2.b (describing a recent Australian controversy over poppers regulation).

      [222].     See Amelia Dimoldenberg, Turns Out Poppers Aren’t Banned in the UK, Even Though Politicians Thought They Were, Vice (Mar. 16, 2016), https://www.vice.com/en/article/7bad8b/
poppers-not-banned-psychoactive-substance-bill [https://perma.cc/3ZUD-N3PZ]; Gavin Butler, The Government’s Amyl Ban has Been Shredded by LGBTIQ+ Health Advocates, Vice (Nov. 8, 2018), https://www.vice.com/en/article/pa5dkb/the-governments-amyl-ban-has-been-shredded-by-lgbtiq-health-advocates [https://perma.cc/2BSU-PUXR].

      [223].     See Recent Failed Attempts to Ban Poppers in the United Kingdom, infra Part II.B.1.b (describing the current poppers regime in the United Kingdom); see also Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c (describing the current poppers regime in Australia).

      [224].     See generally Recent Failed Attempts to Ban Poppers in the United Kingdom, infra Part  II.B.1.b (describing the current poppers regime in the United Kingdom).

      [225].     See generally Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c (describing the current poppers regime in Australia).

      [226].     For a more definitive and in-depth discussion of the history, Adam Zmith’s Deep Sniff: A History of Poppers and Queer Futures is an irreplaceable and indispensable source of knowledge. He does amazing research on past poppers prosecution in the United Kingdom that this Note draws from. Moreover, he goes in greater detail on U.K. poppers history and the place of poppers in the LGBTQ+ community. See Zmith, supra note 2.

      [227].     Id. at 88.

      [228].     Id. at 3–5.

      [229].     Sale of Amyl Nitrite: Home Office Takes Action, Chemist & Druggist 699 (Dec. 29, 1956) https://archive.org/details/b19974760M4186/page/n23/mode/2up?view=theater [https://perma.cc/ET37-USJ2].

      [230].     Id.

      [231].     Chemists Accused of Improper Supply of Amyl Nitrite, Chemist & Druggist 141–42 (July 31, 1976), https://archive.org/details/b19974760M5239/page/140/mode/2up?view=theater. [https://
perma.cc/HPZ9-PBM2].

      [232].     High Court Appeal Against Striking Off is Successful, Chemist & Druggist 164 (July 29, 1978), https://archive.org/details/b19974760M5345/page/164/mode/2up?view=theater. [https://perma.
cc/NQB8-6T3Y].

      [233].     Id.

      [234].     Id.

      [235].     Id.

      [236].     Id.

      [237].     Zmith, supra note 2, at 88.

      [238].     Id. at 94.

      [239].     Advisory Council on the Misuse of Drugs (ACMD), Consideration of the Novel Psychoactive Substances (‘Legal Highs’) 53 (Oct. 2011) [https://perma.cc/L8N2-GYWA]. In France, the Council of State similarly struck down a government blanket prohibition on all non-medical alkyl nitrites in 2009, finding that the risks cited did not justify this harsh action. Conseil d’État, 10ème et 9ème sous-sections réunies (May 15, 2009), available at https://www.legifrance.gouv.fr/ceta/id/
CETATEXT000020868995/ [https://perma.cc/G7CL-MEA9].

      [240].     ACMD, supra note 239, at 53.

      [241].     Id.

      [242].     Frances Perraudin, The Poppers Ban: Will it Criminalise Gay Users?, Guardian (Mar. 7, 2016), https://www.theguardian.com/society/2016/mar/07/poppers-ban-uk-april-liquid-gold-john-addy [https://perma.cc/Q9YW-44VA].

      [243].     Id.

      [244].     Tory MP Crispin Blunt ‘Outs Himself’ as Popper User, BBC (Jan. 20, 2016), https://www.bbc.com/news/uk-politics-35363865 [https://perma.cc/9MA2-9XAY].

      [245].     Advisory Council on the Misuse of Drugs (ACMD), RE: ACMD Review of Alkyl Nitrites (“Poppers”) 4 (Mar. 2016), https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/508179/Poppersadvice.pdf [https://perma.cc/6GV7-NUBQ].

      [246].     Perraudin, supra note 242.

      [247].     U.K. Trademark No. 00,002.565,574; U.K. Trademark No. 00,002,583,973.

      [248].     LIQUID GOLD, U.K. Trademark No. 00002565574; DV8, U.K. Trademark No. 00002583973.

      [249].     See Poppers Marks Registration History, infra Part II.A.2.b.

      [250].     See Exhibit 1 (showing a non-exhaustive list of poppers trademarks mainly in the United States).

      [251].     Zmith, supra note 2, at 88.

      [252].     See Mack, supra note 13 (“As something of a truce, poppers manufacturers and regulators have entered into what Zmith describes as an unspoken deal: zero explicit advertising and a limited market in exchange for regulation and enforcement that is less sharp-toothed than other drugs receive.”); Perraudin, supra note 242.

      [253].     AMCD, supra note 239.

      [254].     Id.

      [255].     Gavin Butler, The Government Wants to Know Whether You Think Amyl Should Be Banned, VICE (Nov. 25, 2018), https://www.vice.com/en/article/yw73pv/the-government-wants-to-know-whether-you-think-amyl-should-be-banned [https://perma.cc/7TR6-UNBK].

      [256].     Butler, supra note 222.

      [257].     Final Decision(s) for Matter(s) Referred to the March 2019 ACMS-ACCS Meeting, Austl. Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin. (June 6, 2019) [hereinafter Failed Decision(s) for Matter(s) Referred to the March 2019 ACMS-ACCS Meeting]., https://www.tga.gov.au/resources/publication/scheduling-decisions-final/final-decisions-matters-referred-march-2019-joint-acms-accs-meeting [https://perma.cc/BTR8-73NQ].

      [258].     Gavin Butler, You’ll Soon Be Allowed to Buy Amyl in Australian Pharmacies - But There’s A Catch, VICE (June 6, 2019), https://www.vice.com/en/article/a3x4bp/youll-soon-be-allowed-to-buy-amyl-in-australian-pharmaciesbut-theres-a-catch [https://perma.cc/Y46S-QKVX].

      [259].     1.3 Alkyl Nitrites: Scheduling Medicines and Poisons, Austl. Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin. [hereinafter Alkyl Nitrites: Scheduling Medicines and Poisons], https://www.tga.gov.au/resources/publication/scheduling-decisions-interim/publication-interim-decisions-proposing-amend-or-not-amend-current-poisons-standard-september-2018/13-alkyl-nitrites [https://perma.cc/L7YY-XHBP].

      [260].     Id.

      [261].     Id.

      [262].     Id.

      [263].     Id.

      [264].     Fengyi Jin, Mohamed A. Hammoud, Lisa Maher, Louisa Degenhardt, Adam Bourne, Toby Lea, Stefanie Vaccher, Jeffrey Grierson, Bridget Haire & Garrett P. Prestage, Age-related Prevalence and Twelve-Month Incidence of Illicit Drug Use in a Cohort of Australian Gay and Bisexual Men: Results from the Flux Study, 188 Drugs & Alcohol Dependence 175, 175–79 (2018).

      [265].     See, e.g., Joshua Badge, My Long and Painfully Awkward Quest to Buy Legal Poppers, Junkee (June 4, 2019), https://junkee.com/poppers-legal-prescription/208430 [https://perma.cc/7EPC-6XEZ] (detailing his own experience to try and get a legal prescription of poppers under the old rule, stating that “[i]n the end, LGBTIQ people and folks wanting to have enjoyable sex face a gauntlet of stigma, medical jargon, time-consuming hassle and criminalisation”).

      [266].     Alkyl Nitries: Scheduling Medicines and Poisons, supra note 259.

      [267].     Id.

      [268].     Id.

      [269].     Id.

      [270].     Id.

      [271].     Butler, supra note 255.

      [272].     Paul Karp, Making Amyl Nitrite an Illegal Drug Would be Ineffective, Warns Former AFP Chief, Guardian (Sept. 25, 2018), https://www.theguardian.com/politics/2018/sep/25/making-amyl-nitrite-an-illegal-drug-would-be-ineffective-warns-former-afp-chief [https://perma.cc/T69P-9ESY].

      [273].     Public Meeting Communique: Regulatory Options for Appropriate Access and Safety Controls for Alkyl Nitrites, Austl. Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin. (Mar. 7, 2019), https://www.tga.gov.au/resources/publication/publications/public-meeting-communique-regulatory-options-appropriate-access-and-safety-controls-alkyl-nitrites [https://perma.cc/DF3H-X7K8].

      [274].     Id.

      [275].     Final Decision(s) for Matter(s) Referred to the March 2019 ACMS-ACCS Meeting, supra note 248.

      [276].     Id.

      [277].     Id.

      [278].     Id.

      [279].     Butler, supra note 248.

      [280].     Failed Decision(s) for Matter(s) Referred to the March 2019 ACMS-ACCS Meeting, supra note 266.

      [281].     Id.

      [282].     Butler, supra note 249.

      [283].     Personal Importation Scheme, Austl. Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin. (Jan. 30, 2023), https://www.tga.gov.au/products/unapproved-therapeutic-goods/personal-importation-scheme [https://perma.cc/UMK3-4U8A].

      [284].     Testing of Alkyl Nitrite ‘Poppers’, Austl. Gov’t Dept. of Health & Aged Care, Therapeutic Goods Admin. (June 6, 2019), https://www.tga.gov.au/resources/publication/tga-laboratory-testing-reports/testing-alkyl-nitrite-poppers [https://perma.cc/EML3-YDP4].

      [285].     Id.

      [286].     Id.

      [287].     Badge, supra note 265 (describing the difficulties at least in 2019 in getting a doctor’s prescription and finding a pharmacy, going to two different doctors for a prescription and calling over two dozen pharmacies).

      [288].     Butler, supra note 249.

      [289].     See American Poppers: Banned and Protected, infra part II.A; Poppers: A Global Phenomenon, infra part II.B.

      [290].     See, e.g., Why Register Your Trademark?, USPTO, https://www.uspto.gov/trademarks/
basics/why-register-your-trademark [https://perma.cc/Y53D-BMX4].

      [291].     See, e.g., What Is A Trademark?, USPTO, https://www.uspto.gov/trademarks/basics/what-trademark [https://perma.cc/95MZ-NGDF] (last visited Jan. 14, 2024).

      [292].     Sonia K. Katyal, The Unpaid Debt to a Pioneering Gay Olympian, Boston Globe (Aug. 5, 2021), https://www.bostonglobe.com/2021/08/05/opinion/unpaid-debt-pioneering-gay-olympian/ [https://perma.cc/34DP-TJPA].

      [293].     789 F.2d 1319, 1323 (9th Cir. 1986).

      [294].     Katyal, supra note 292.

      [295].     Int’l Olympic Comm., 789 F.2d at 1323.

      [296].     See S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 548 (1987).

      [297].     Professor Katyal draws this connection that both cases were decided in the same term. See Katyal, supra note 292.

      [298].     Id.

      [299].     Our History, Dykes On Bikes, https://www.dykesonbikes.org/history [https://perma.cc/
3Q5E-E38U] (last visited Apr. 1, 2024).

      [300].     Id.

      [301].     See McDermott v. S.F. Women’s Motorcycle Contingent, 240 F. App’x 865, 867 (Fed. Cir. 2007) (finding that the opposing party lacked standing).

      [302].     Dykes on Bikes, supra note 299.

      [303].     See Matal v. Tam, 582 U.S. 218, 220 (2017) (striking down the disparagement clause of the Lanham Act).

      [304].     Pac-West Distributing, https://neverfakeit.com/ [https://perma.cc/5TGJ-7BTK] (last visited Oct. 15, 2023).

      [305].     Id.

      [306].     Id.

      [307].     Id.

      [308].     See, e.g., The Popper King, thepopperking.com [https://perma.cc/Z6NU-69ZW] (last visited Jan. 18, 2024); U.S.A. Poppers, usapoppers.com [https://perma.cc/XV6P-HPEQ] (last visited Jan. 18, 2024).

      [309].     Pac-West Distributing, supra note 304.

      [310].     See A Call for the Legalization of Poppers, infra Part III.C.

      [311].     See Dimoldenberg, supra note 222; Butler, supra note 222.

      [312].     See Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2023, ACLU (Dec. 21, 2023), https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2023 [https://perma.cc/W9JU-V2RC] (“In the last few years states have advanced a record number of bills that attack LGBTQ rights, especially transgender youth.”).

      [313].     Mack, supra note 13 (“Despite the different branding, Farr said the recipes are essentially the same across every bottle — even those made by his competitors.”).

      [314].     Id.

      [315].     Id.

      [316].     There is a small, artisanal popper scene which may have their own chemical concoctions. David Dancer, I Gotta Have My Pops: Artisanal Poppers Are the Next Big Thing in Butt Sex, Vice (July 26, 2016). https://www.vice.com/en/article/vdb8yx/i-gotta-have-my-pops-how-it-feels-to-try-artisanal-and-aerosol-poppers [https://perma.cc/QW89-BC6D]; id.

      [317].     Berkeley Lovelace Jr., How Viagra Revolutionized the Erectile Dysfunction Market, CNBC (May 15, 2019), https://www.cnbc.com/2019/05/10/how-viagra-revolutionized-the-erectile-dysfunction-market.html [https://perma.cc/G3KY-EQVP].

      [318].     See The Rise of Poppers as Brands, infra Part II.A.1.

      [319].     See, e.g., Criminal Complaint at 1–2, United States v. Daniel Guida, Jr. and Andrew Garey Webb, No. 96-1964-B, Dkt. 1 (S.D. Cal. Oct. 23, 1996).

      [320].     See Alex Malyshev & Sarah Ganley, With 2023 in Rearview Mirror, What Should the Cannabis Industry Expect in 2024?, Reuters (Jan. 9, 2024), https://www.reuters.com/legal/litigation/
with-2023-rearview-mirror-what-should-cannabis-industry-expect-2024-2024-01-09/ [https://perma.cc
/L7BR-NAV9]; Madison Carlino, The Latest on Proposed Psychedelics Legalization in States, Reason (Apr. 13, 2023), https://reason.org/commentary/status-of-proposed-psychedelics-legislation-in-states/ [https://perma.cc/H47W-2YGS].

      [321].     See Carlino, supra note 320.

      [322].     There is arguably already some precedent on the federal level with a poppers company paying a $10,000 civil penalty settlement to the Consumer Product Safety Commission over exporting poppers abroad. See Press Release, Consumer Product Safety Commission, Great Lakes Products Inc. Pays to Settle Civil Penalty Case (Sept. 22, 1994), https://www.cpsc.gov/Newsroom/News-Releases/1994/Great-Lakes-Products-Inc-Pays-To-Settle-Civil-Penalty-Case [https://perma.cc/DA3W-PTYH].

      [323].     See, e.g., Assembly Bill (A.B.) 941 (Cal. 2024) (creating a working group to research the effects of psychedelics).

      [324].     States like California have dedicated departments to regulate drugs like cannabis. See, e.g., Dep’t of Cannabis Cal., https://cannabis.ca.gov/ [https://perma.cc/2K3H-7NAK] (last visited Apr. 1, 2024).

      [325].     15 U.S.C. § 2057b.

      [326].     See Cong. Rsch. Serv., Enforcement of the Food, Drug, and Cosmetic Act: Select Legal Issues 4 (2018).

      [327].     See, e.g., FDA, supra note 98.

      [328].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [329].     Cong. Rsch. Serv., supra note 326, at 4.

      [330].     See Amyl and Pentyl Nitrites, infra Part I.A.1.

      [331].     See Testing of Alkyl Nitrite ‘Poppers’, supra note 284.

      [332].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [333].     See id.

      [334].     They require pharmacist approval instead of merely over the counter, but there’s no U.S. equivalent to pharmacist approval to buy drugs. See United Kingdom’s Uncertain Popper Regime, infra Part II.B.1; see also Final Agency Ruling and Its Implications for Poppers in Australia, infra Part III.B.2.c.

      [335].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [336].     See State Regulatory Temporary Solutions, infra Part III.C.1.

      [337].     See FDA Regulatory Reform, infra Part III.C.2.

      [338].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [339].     See id.

      [340].     See id.

      [341].     See id.

      [342].     See What Poppers are Made Of, infra Part I.A.

      [343].     Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [344].     See id.

      [345].     See Technical Primer, infra Part I.

      [346].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [347].     See id.

      [348].     See Technical Primer, infra Part I.

      [349].     See The Rise of Poppers as Brands, infra Part II.A.1.

      [350].     See id.

      [351].     See What Poppers are Made Of, infra Part I.A.

      [352].     See Recent Failed Attempts to Ban Poppers in the United Kingdom, infra Part II.B.1.b.

      [353].     See id.

      [354].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [355].     See, e.g., U.S. Patent No. 3,106,511 (issued Oct. 8, 1963, to Revlon, Inc.).

      [356].     See Orlean, supra note 50.

      [357].     See, e.g., Tankut Atuk, Pathopolitics: Pathologies and Biopolitics of PrEP, 5 Frontiers Socio. 1, 1 (2020) (“The Western public health rhetoric, likewise, has often disciplined deviant sexualities by spreading the fear of HIV transmission . . . . The same fear is adamantly kept alive today to surveil and extract profit from gay men’s bodies, HIV+ or not . . . .”); see also William Kasper, Innovation to Contain the HIV/AIDS Crisis: A Truvada Case Study, 39 Berkeley Tech. L.J. 427, 443–72  (2024) (chronicling the decades-long development and wide commercial success of the HIV/AIDS treatment and prevention drug Truvada).

      [358].     See id. (describing the sociological impacts of Gilead Sciences, Inc.’s pervasive PrEP drugs to prevent HIV infection in the queer community); see also Press Release, Gilead Scis., Inc., Gilead and the Human Rights Campaign Will Work Together to Combat HIV Epidemic and Promote Transgender Justice (Feb. 2, 2021), https://www.gilead.com/news-and-press/press-room/press-releases/2021/2/
gilead-and-the-human-rights-campaign-will-work-together-to-combat-hiv-epidemic-and-promote-transgender-justice [https://perma.cc/C243-X898].

      [359].     Press Release, Gilead Scis., Inc., Gilead Sciences Announces Third Quarter 2023 Results (Nov. 7, 2023), https://www.gilead.com/news-and-press/press-room/press-releases/2023/11/gilead-sciences-announces-third-quarter-2023-financial-results.

      [360].     See Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2023, supra note 312 (“In the last few years states have advanced a record number of bills that attack LGBTQ rights, especially transgender youth.”).

      [361].     See Final Agency Ruling and Its Implications for Poppers in Australia, infra Part II.B.2.c.

      [362].     See id.

      [363].     See Laws Regarding Unlawful Use, infra Part II.A.2.a.

      [364].     See Poppers Marks Registration History, infra Part II.A.2.b.

      [365].     Karp, supra note 272.