Because trademarks are federal law and that law still says that cannabis is still illegal under federal law, no federal trademark protections can be granted by the USPTO yet.
Many medical marijuana, hemp, and CBD businesses are still in their infancy, many cannabis business owners are unsure if they qualify for federal trademark protection. The 2018 Farm Bill established a legal distinction between hemp and marijuana a controlled substances act CSA schedule I drug, as well as the legal status of regularly used cannabinoids and derivatives like CBD.
As a result, as stated in an Examination Guide published by the United States Patent and Trademark Office (“USPTO”) in May of 2019, significant developments in hemp-based trademarks have occurred. Here are the fundamentals of trademark registrations, with a focus on cannabis and hemp products at the federal and state levels.
What is a trademark?
Under trademark, law any word, symbol, product name, device, color, fragrance, or design that is used to differentiate goods or services from those offered by other companies or sellers in the market is referred to as a trademark or a service mark.
Trademarks are a form of Intellectual Property that protect business owners and their trademarks, as well as guaranteeing that their products are not used without their permission. Thanks to trademarks, which distinguish one product from another, consumers can make informed purchasing decisions concerning quality and safety.
Business owners can get “trademark rights” by legitimately using the mark on their products after federally registering the mark with the USPTO or a qualifying state registry.
What makes a trademark unique, and which varieties are the most effective?
Simply put, the more generic your LLC’s trademark is, the higher the chances of it being contested by others. In the cannabis industry, avoid terms like “green,” “kush,” “cannabis,” “420,” “THC,” “Mary Jane,” and “weed” because they are redflags that you are trying to protect marijuana products, which the patent and trademark office cannot issue trademark protection to the THC cannabis space.
The more distinctive your trademark, the better for the brand owner. Because distinctive marks for goods and services are the most difficult to challenge, they are considered strong. The trademarks can be classified as follow:
- Fanciful. Because they are created solely to serve as a trademark, fanciful trademarks are usually the most unique and difficult to challenge. Leafly and THCHEESE are two examples of fanciful trademarks.
- Arbitrary. Arbitrary trademarks have their own identity. These strong marks are made up of a common word that has nothing to do with the product or service for which the trademark is being utilized. Level Blends and ROAM are two examples.
- Suggestive. Suggestive marks are used to indicate a feature of a product or service. Because it frequently alludes at the product or service, this form of logo is useful for marketing and advertising. Seven Point, Re-Leaf, and Royal Highness, for example.
- Descriptive. Adjectives that characterize a product or service are commonly used as descriptive marks. This covers words with a geographic origin, surnames, and alternate spellings. THC Design, Humboldt Green, and Los Angeles Chronic are examples of this type.
- Generic. Generic terms are used to represent a category or type of goods or service, and they are never protected as trademarks. Denver Dispensary and Smoke Shop are two examples of this sort.
Descriptive and generic trademarks are the weakest kind of trademarks. These categories are easier to challenge because they are less distinct (but widely used in the cannabis industry).
Federal cannabis trademarks
Marijuana is a controlled substance under the Controlled Substances Act (“CSA”), therefore selling, purchasing, or using it is unlawful at the federal level, even if it is legal in your city or state.
As a result, any name, product, or other asset that violates the law will be denied trademark registration by the USPTO. “The fact that the supply of a product or service may be permissible within a state is immaterial to the matter of federal registration when it is prohibited under federal law,” according to the Trademark Manual of Examining Procedure.
RELATED POST: Real Estate Contracts Lawyer
Any trademarks that cover cannabis or its byproducts will continue to be refused as long as cannabis is prohibited under the CSA.
A brand may be eligible for trademark registration provided it meets the CSA’s 0.3 percent THC standard, with the exception of dietary supplements, foods, beverages, and pet treats, hemp-derived goods and/or CBD products, as well as related products or services.
In addition, trademark applications for consulting services or commodities not directly related to cannabis, such as computer software, educational platforms, and brand apparel, may be considered by the USPTO.
State cannabis trademarks
Cannabis products, goods, and services that do not meet the USPTO trademark registration criteria may be eligible for state protection. If your company operates in one of these states, many of your items may be eligible for state trademark registration through an applicable registry.
While your state’s cannabis trademark jurisdiction is limited to its geographical bounds, it is a major increase in terms of protection over common law rights.
Businesses have a variety of problems when it comes to trademark registration for cannabis products, but it is vital to take the required procedures to protect your brand and maintain quality and safety. Consult a qualified cannabis or trademark attorney for more information and advice.
RELATED: How to read a cash flow statement
Intellectual property (IP) is a category of property that includes creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
There are several types of IP protection available in the United States, and cannabis companies can benefit from them all. The most common forms of IP protection are copyright, patent, and trademark protection. Copyright protects original expressions fixed in a tangible medium, such as a song or a book. Patent protection is available for new and non-obvious inventions. Trademark protection is available for distinctive logos and product names.
Cannabis companies can use copyright, patent, and trademark law to protect their intellectual property. However, cannabis companies cannot get federal trademark protection for their intellectual property. This is because cannabis is still illegal under federal law. The USPTO will not register trademarks that are illegal or immoral.
Despite this limitation, cannabis companies can still use copyright, patent, and trademark law to protect their intellectual property. For example, a cannabis company could use copyright law to protect its logo mark, patent law to protect its new and non-obvious methods of extracting products from cannabis plants, and trademark law to protect its product names.
It is important to note that even if a cannabis company does not get federal trademark protection for its intellectual property, it may still be able to sue someone for infringement. This is because state trademark protection is still available to cannabis companies. State trademark law is based on common law, which means that it is not created by statute and therefore does not have all the same protections as federal trademark law. However, state trademark law does offer some level of protection for cannabis companies’ intellectual property.
Conclusion of cannabis trademarks
Cannabis companies should consult with an IP attorney to find out what types of IP protection are available to them and how best to protect their intellectual property.
