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 are common as companies make efforts to stand out in competitive industries. However, in this pursuit of differentiation, some businesses may take inspiration from a competitor’s creative assets. These actions risk infringing on the trademark of the business that registered the concept with the United States Patent and Trademark Office (USPTO). Trademark infringement cases can be complicated, which is why companies should work with an experienced Texas trademark lawyer from Ritter Spencer PLLC. Read below to learn some of the basics of trademark infringement and what legal options are available to businesses with a registered trademark.
Trademark Lawyer Chelsie Spencer was published in the State Bar of Texas Intellectual Property Section’s TipSheet Vol. 13 No. 2, discussing the USPTO’s treatment of trademark applications for goods containing cannabidiol. To view the article, continue reading below or click here.
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.
When you file an application for federal trademark registration, the TEAS filing portal (Trademark Electronic Application System) will ask you to select a filing basis for your trademark application. There are two available bases for selection: 1(a) or 1(b). Both are derived from the Lanham Act, the statute governing trademarks. When you prepare to file your online trademark application, it can often be confusing as to which basis you should file with.
When registering a trademark with the United States Patent and Trademark Office (USPTO), any of the available application forms for filing will require that you specify whether you are applying for the mark in a standard character format, also referred to as a word mark, or in a special form, referred to as a stylized mark or design mark. Assuming that your business name is eligible for trademark registration, you may wonder whether you should trademark the business name or the business’s logo first. You have the option to register (a) the business name only (b) the logo or other design only or (c) both.
It’s time for Ritter Spencer’s first annual holiday trademark round up. During the holidays, you will see several commercials and other advertisement for holiday specific products. Many of the brands behind these advertisements protect their goods and services through federal trademark registration. Even the studios behind some of the famous and classic Christmas movies that you watch have trademarked the goods and services related to their movies and characters. By owning a trademark, trademark owners can exclude others from using a confusingly similar name that may lead to consumer confusion.
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.
When you speak with a trademark lawyer, you may hear them refer to the “registrability” of your trademark. This term refers to the fact that not all words, logos, slogans, etc., can be registered as a federal trademark with the United States Patent and Trademark Office.
The strength of a trademark depends on what trademark category the mark falls under. There are five categories of trademarks: generic trademarks, descriptive trademarks, suggestive trademarks, arbitrary trademarks, and fanciful trademarks.