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.
What is a Trademark?
A trademark, or a service mark, applies to certain company assets, including any word, symbol, product name, device, color, scent, or design used to differentiate goods or services from other businesses and sellers in the market. Trademarks protect business owners and their brands from being copied and ensure that no one exploits their products without their permission. Trademarks also enable consumers to make informed buying decisions regarding quality and safety, as branding helps distinguish one product from another. Business owners can establish “trademark rights” by legally using the mark on their products after federally registering the mark with the USPTO or a qualified state registry.
Federal Cannabis Trademarks
As marijuana remains a controlled substance under the Controlled Substances Act (“CSA”), it is federally illegal to sell, purchase, or use marijuana across state lines, even if it is legal in your city or state. Accordingly, the USPTO will deny trademark registration to any name, product, or other assets that violate the law. The Trademark Manual of Examining Procedure states that “the fact that the provision of a product or service may be lawful within a state is irrelevant to the question of federal registration when it is unlawful under federal law.” As cannabis is illegal under the CSA, any trademarks that cover cannabis or its byproducts will continue to be denied.
However, hemp-derived goods and/or CBD products, as well as ancillary products or services, may be eligible for trademark registration if they comply with the CSA’s 0.3% threshold of THC, with the exception of the following goods that are regulated by the U.S. Food and Drug Administration: dietary supplements, foods, beverages, and pet treats. Additionally, the USPTO may accept trademark applications for consulting services or goods that do not directly involve the cannabis flower, such as computer software, educational platforms, and brand apparel.
State Cannabis Trademarks
Cannabis products, goods, and services that do not meet the USPTO standard for trademark registration may qualify for state protection. As of the end of 2020, recreational marijuana is legal in 15 states, and medical marijuana is legal in 36 states. If your business operates in one of these states, many of your products may be permitted for state trademark registration through an appropriate registry. While your state cannabis trademark jurisdiction is limited to the state’s geographical boundaries, this is a substantial improvement in protection above common law rights.
Trademark registration for cannabis products continues to present various challenges for businesses, but it is critical to take the necessary steps to protect your business and ensure quality and safety. Speak with a qualified cannabis or trademark lawyer for detailed expertise and perspective.
Cannabis lawyer Chelsie Spencer remains active in the cannabis community and is dedicated to providing legal services and counsel to a range of marijuana, hemp, and CBD businesses. With extensive experience in hemp and marijuana law, Chelsie also focuses on transactional issues in commercial law, intellectual property law, and business law. Contact Ritter Spencer Cheng or give us a call at 214.295.5070 for more information.
