As the medical marijuana, hemp, and CBD industries are still relatively new, many cannabis business owners are unsure whether they qualify for trademark protection or not. The 2018 Farm Bill clarified the legal distinction of hemp from marijuana and the status of popular cannabinoids and derivatives, such as CBD. Accordingly, positive changes regarding hemp-based trademarks have taken place, which the United States Patent and Trademark Office (“USPTO”) outlined in an Examination Guide in May of 2019. Below, we outline the basics of trademarking with a focus on cannabis and hemp products at the federal and state level.
Trademarks can include any word, name, symbol, device, or any combination thereof used to identify and distinguish goods and services used in interstate commerce. Most people know that trademarks consisting of words and/or graphic designs can be registered with the United States Patent and Trademark Office. However, non-traditional trademarks, which may include color, sound, texture, smell, taste, texture, etc., are also eligible for trademark registration under the Lanham Act. Non-traditional trademarks also include trade dress, which we will discuss on the blog next week.
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of others. Where a trademark serves as a source identifier services, you may see it referred to as a service mark. For example, MCDONALDS is used as a trademark for both goods and services. The MCDONALDS service mark covers the brick and mortar retail stores and food services that McDonalds offers to the public. Fun fact: McDonalds once sued a dentist for using the term McDental as a service mark for providing dental services.