With medical marijuana legal in 33 states and recreational marijuana legal in 11 of those states (including Illinois, which had over $3 million in transactions on January 1, its first day of legal sales), there is huge growth in the cannabis products market. In turn, many companies are investing in cannabis and seeking legal guidance about how to protect and trademark their brands. The Moskowitz Firm is available to help guide its clients with respect to these concerns, to the extent permitted by state and federal law.
Despite the increasing legality of cannabis products at the state level, marijuana is still illegal at the federal level because marijuana is classified as a Schedule I drug under the Controlled Substances Act. Thus, a federal trademark is currently unavailable for marijuana products.
That said, there are many opportunities for companies in this industry to protect their brands. To begin with, hemp products and certain cannibidiol (CBD) products derived from hemp (containing no more than 0.3 percent delta-9 tetrahydrocannabinol (THC)) rather than marijuana are now excluded from the Controlled Substances Act, thanks to the 2018 U.S. Farm Bill. Thus, these products may be entitled to trademark protection without running afoul of federal law.
Despite opening the door to brand protection for some hemp-based goods, the United States Patent and Trademark Office (USPTO) followed the FDA’s lead in prohibiting the registration of any food, drink, supplement, or even pet snack containing CBD.
In addition, companies that sell products and services related to marijuana may be eligible for trademark protection. Such ancillary products, including marijuana-themed t-shirts, posters, pipes, websites, and educational services/informational websites, can serve as a basis for a federal trademark. Indeed, these ancillary products may serve as a basis for a federal trademark even where the brand name includes the word “marijuana” or where the company also sells marijuana—though there can be no federal trademark protection for the company’s sale of actual marijuana.
Furthermore, some states now allow for companies involved with the cannabis industry to apply for state trademarks. These provide lesser geographic protection than a federal trademark, though they can still be valuable. For certain companies, registration in Canada (where cannabis is legal for medicinal and recreational use) may be appropriate. TMF has trusted colleagues in many of these jurisdictions.
As those who have begun this process know, with so many cannabis startups, it has quickly become a crowded brand field, and pre-filing clearance of third-party uses is especially important to maximize the chance of success when filing for trademark protection. In addition, USPTO examination is stringent and all applications which appear to have a relationship to hemp, marijuana, or cannabis are subject to numerous additional questions beyond the initial application.
Legal practitioners are hopeful that federal and state laws surrounding cannabis will be reconciled in the coming years to provide meaningful and dependable standards. As of this writing, Ohio’s Medical Marijuana Control Program (MMCP), for example, is very restrictive and does not provide for brand protection.
Until then, many companies in the cannabis industry are plagued by feelings of uncertainty. If you have such a business or are considering starting or investing in one, contact The Moskowitz Firm to discuss strategies for protecting your cannabis-related brands. However, as of this writing, using, distributing, and/or selling marijuana is illegal federally, and TMF cannot provide any guidance or assistance in connection with violation of applicable federal or state law.