Trademarking Cannabis Related Products
While Cannabis cannot travel interstate, trademarks and goodwill can. The landscape around trademarking cannabis-related products including hemp & CBD has been changing and continues to develop in both State and Federal jurisdictions. The passage of the 2018 Farm Bill has allowed the USPTO to accept trademark applications for both CBD and Hemp marks. However, there are limitations to trademarking cannabis, CBD, & hemp goods and services.
Trademark Use in Interstate Commerce Must be Lawful under Federal Law
To receive a federal registration from the United States Patent & Trademark Office (USPTO), the use of a mark in commerce must be lawful under federal law. This means the USPTO must refuse all applications that violate the following federal laws:
- The Controlled Substance Act (CSA), 21 U.S.C. §§ 801
- The Federal Food Drug and Cosmetic Act (FDCA), 21 U.S.C. §§ 301
- The Agriculture Improvement Act of 2018 which amended the Agricultural Marketing Act of 1946 (AMA), 7 U.S.C. § 1621.
The CSA defines “Marihuana” as “All parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” Cannabidiol (CBD) is considered a chemical of the cannabis plant and is included in the CSA’s definition of marijuana.
Prior to the 2018 Farm Bill, the CSA prohibited manufacturing, distributing dispensing or possessing marijuana. Therefore, the USPTO was refusing registrations that identified goods encompassing CBD or other extracts of marijuana because the goods were unlawful under federal law. However, the 2018 Farm Bill amended the AMA and changed the CSA by allowing the production and marketing of “hemp.”
Under the 2018 Farm Bill, “Hemp” is defined as:
The plant Cannabis sativa L. and any part of that plant, including the seeds, thereof and derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3% on a dry weighted basis.
Trademarks for CBD or Hemp-derived Goods
There are three types of goods when considering CBD or Hemp trademarks:
- Hemp Goods;
- CBD Goods derived from Hemp; and
- CBD Goods derived from Marijuana (Still violates federal law)
Not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. Some goods raise lawful-use issues under the FDCA or CSA acts. The 2018 Farm Bill potentially removed the CSA as a ground of refusal of registration for CBD and Hemp. However, the USPTO will only allow registration for CBD if the goods are derived from Hemp. Cannabis and CBD derived from marijuana still violates federal law. Any Cannabis or CBD goods derived from marijuana will be refused registration.
Trademarks for Hemp Goods
With the passage of the 2018 Farm Bill, hemp-related goods are no longer considered controlled substances under the CSA. The USPTO will allow registrations but will require the applicant to answer additional mandatory statements.
Trademark for CBD goods
Even if the goods are legal under the CSA (i.e. CBD goods derived from Hemp), NOT all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. The FDA currently prohibits any use of drugs or substances undergoing clinical investigations in foods or dietary supplements. These goods raise lawful-use issues under the FDCA and CSA because CBD is an active ingredient in FDA-approved drugs but it is still a substance undergoing clinical investigations. Trademark registrations for the following goods would be unlawful under the FDCA:
- Dietary Supplements; and
- Pet Treats
If these goods contain CBD, even if derived from Hemp, then these goods may not be introduced into interstate commerce under the FDCA and will be denied trademark registrations from a USPTO trademark examiner. State trademark protection may be a better option.
For allowable trademarks for CBD goods, the USPTO will allow registrations but will require the applicant to answer additional mandatory statements. A trademark attorney can help you navigate compliance so that your brands can obtain a federal trademark.
Trademarks for Cannabis & Cannabis Production Services
When applications for services involving cannabis-related activities, the trademark examiner will review the application for compliance with the CSA and 2018 Farm Bill. The USPTO will refuse registrations when the identified services in the application involve cannabis that meets the definition of marijuana and activities prohibited by the CSA. These activities still violate federal law.
However, if the services involve hemp, the applications will be examined for compliance with the 2018 Farm Bill. Applicants will be required to provide additional statements for the record such as confirming that the activities meet the 2018 Farm Bill requirements and that the hemp is being produced under license by a jurisdiction.
If you are unable to receive a federal trademark registration, you may want to consider other options for getting trademark protection. Alternative trademark strategies include:
- Federal trademarks for “legal” related goods and services
- Common law protection
- State Trademark Registrations
- Copyright Registration of Logos and Product Packaging.