Recently, the United States Drug Enforcement Agency (DEA) issued an internal directive which will likely assist pending and future CBD trademark registrations with the United States Patent and Trademark Office. What is CBD you ask? CBD is an acronym for cannabidiol, a cannabis compound derived from the marijuana plant. Importantly, CBD is a non-psychoactive compound, meaning that it lacks THC (Tetrahydrocannabinol) – the cannabinoid compound associated with marijuana use. CBD has been added to a variety of goods, from oils, to vapor, to honey, to candies, and beyond.
The CBD industry has exploded in recent years. Forbes recently projected the industry’s future growth rate at 700%, with a projected industry-wide valuation of 2.1 billion dollars by the year 2020. The market is getting crowded for CBD goods and service providers and it is tantamount for those in the CBD industry to invest in protection of their brands.
Because of the non-psychoactive nature of CBD, the DEA’s recent directive clarifies that CBD does not constitute a prohibited substance under the Controlled Substance Act (CSA). The issued directive reads, “Products and materials that are made from the cannabis plant and which fall outside the CSA definition of marijuana (such as sterilized seeds, oil or cake made from the seeds, and mature stalks) are not controlled under the CSA. Such products may accordingly be sold and otherwise distributed throughout the United States without restriction under the CSA or its implementing regulations.”
For pending CBD registrations, the USPTO had been issuing Office Actions requiring applicants to certify a variety of inquiries, such as whether the identified goods in the trademark application contain marijuana, cannabis, or synthetic marijuana; what portion of the plant the source material of the CBD was extracted from; and whether the CBD contains less than .3 percent THC content, among other inquiries.
As recently as May of 2018, the USPTO had issued Office Actions with refusals based on the lawful use rule, namely that since “…CBD is a Schedule I controlled substance as defined under the CSA,” CBD goods could not be used lawfully in commerce and thus were ineligible for trademark registration. Considering the DEA’s recent directive, the USPTO should cease issuance of CBD initial refusals based on the CSA.
The CBD industry benefits greatly from trademark registrations because CBD manufacturers and service providers often provide marijuana products and services in states in which marijuana is legal. However, marijuana is an illegal substance under the CSA and thus marijuana goods and services remain ineligible for trademark registration with the USPTO. Registration of the related CBD goods often assists companies in protecting their brands.
Ritter Spencer Cheng is at the forefront of filing for CBD trademark registrations. Our trademark attorney Chelsie Spencer has filed numerous CBD goods trademark applications. Mrs. Spencer is also co-authoring an in-depth article reviewing the state of CBD and marijuana branding. Keep an eye out on the Ritter Spencer Cheng website and social media pages, as we will post a copy of the article upon publishing.
Update: On May 2, 2019, the USPTO issued a new examination guideline on CBD/hemp trademarks.
If you need a trademark lawyer, call Ritter Spencer Cheng today. Brand protection is what we do. 214.295.5074, info@ritterspencer.com.
