As the state-sanctioned medical and recreational use of cannabis continues to grow in the United States, so does competition. To stand out in this industry, companies need to build brand recognition or develop novel products. Therefore, intellectual property protection should be a major focus for cannabis companies. Cannabis-based businesses need to safeguard their brand identity through intellectual property protection. Using IP protections like trademarks, copyrights, patents, and trade secrets, business owners can effectively shield their brand from potential IP infringement. Read below to learn how cannabis companies can protect their creative assets and how Ritter Spencer Cheng can help preserve intellectual property.
A trademark legally protects your brand’s name, symbol, logo, or any device that differentiates your business from others in your industry. Obtaining a federal trademark prevents your competitors from capitalizing on your name or brand and allows you to pursue infringement action against other businesses with identical or similar trademarks.
Receiving a federal trademark can be difficult for a cannabis business, as this protection is only allowed for products in lawful use in interstate commerce. Marijuana is classified as a Schedule I controlled substance under The Controlled Substances Act, and as such, any plant-inclusive good is ineligible for federal trademark protection. Cannabis companies can pursue alternative strategies, such as federal registration for ancillary services or state trademark registration in their individual states of operation.
For hemp companies, even though the passage of the 2018 Farm Bill, legalized hemp-derived CBD products containing no more than 0.3% tetrahydrocannabinol, or THC, the USPTO will refuse registration for any hemp-derivative product that is subject to the federal Food, Drug, and Cosmetics Act due to the FDA’s current stance. These products are generally any products intended for human or animal consumption or products that are advertised or labeled for a medical purpose.
Copyright protects certain creative assets, including literary, musical, and artistic creations. However, copyright does not protect facts, ideas, systems, or methods of operation. Generally, copyright protection lasts for the duration of the creator’s life, plus 70 years after their death, for individual authors. For works of corporate authorship, protection lasts the earlier of 95 years from publication or 120 years from creation. Copyright holders do not have to register for their protection, as a work of authorship is protected from its inception. However, registration should be pursued, as federal registration is required to enforce rights in federal courts, which have original jurisdiction over copyright disputes.
Unlike trademarks, copyright is not restricted by the federal illegality of marijuana. Therefore, even if a cannabis business cannot trademark elements of its brand identity, it can still prevent others from reproducing, distributing, or displaying its work under copyright law. Graphic works that meet a minimum threshold of creativity may qualify for copyright protection.
A patent stops others from commercially producing, distributing, importing, or selling an innovative product or service. This protection generally lasts 20 years from the utility patent application filing date. Like copyright, patents for cannabis-based businesses are legal, and the USPTO has issued hundreds of patents for cannabis products and services. Patents include the right to exclude others from commercially exploiting the product.
Patents can be crucial in protecting innovative cannabis products. For example, certain kinds of cannabis plants are reproduced asexually through processes like cloning. In this instance, patents may protect cannabis plants with distinctive characteristics from other strains. Additionally, patents can protect cannabis-related inventions, including vaporizer devices, extraction methods, and new cannabis compositions.
4: Trade Secrets
A trade secret protects formulas, practices, processes, designs, or other innovations that have inherent commercial value because they are not public knowledge. Trade secrets can be used to safeguard unique cannabis strains, processes, formulas, recipes, manufacturing details, and more. This form of IP protection can last for a long time if the secret is successfully held. Business owners can utilize non-disclosure and employment agreements to prevent their trade secrets from being exposed and prolong their trade secret protection.
Business owners in the cannabis community should familiarize themselves with the different legal protections for intellectual property. By partnering with trusted cannabis attorneys like Chelse Spencer, clients gain the counsel necessary to advance in the hemp, CBD, and cannabis industries. Contact Ritter Spencer Cheng or give us a call at 214.295.5070 for more information.