Fact or Myth: You Can't Protect Your Cannabis Brand

The cannabis industry is rapidly growing with legalization occurring in multiple states. A growing industry means and increased number of businesses and therefore growing competition.  Thus, now more than ever, it’s critical that you take the required steps to protect your brand.  You may have heard that trademarks protecting cannabis products are not allowed. Is this really the case? Is there any way to combat this?

As a blanket statement, this is not true. This myth comes from the fact that the United States Patent and Trademark Office has a “use in commerce” requirement which means that the goods and services sold under the mark must be legally tradeable under federal law. Since most cannabis products have not been federally legalized, it’s unlikely that marks associated solely with those products will not be able to obtain federal trademark registration.

One exception to this rule is for hemp products, and those cannabis products which, like hemp, contain less than 0.3% THC content by weight. The Farm Bill, officially known as The Agricultural Improvement Act of 2018, carved out an exception to the Controlled Substance Act. This exemption was for hemp products, and since the passing of this Act, the USPTO has begun to allow applications for marks used in association only with hemp products and cannabis products that are explicitly designated as having less than 0.3% THC content.

Note that the USPTO does not allow trademark registration for any cannabis products containing CBD. Additionally, unless otherwise designated, it is presumed that products containing cannabis extracts consist of some amount of CBD. So, hemp products that are ingestible and those that proclaim to have some medicinal or therapeutic effect are routinely rejected by the USPTO.

Also note that federal trademark registration is only one way to protect your brand. There are state trademarks as well as common law trademarks which offer less exhaustive protection, but some protection is better than no protection. Knowing the information above indicates that there are a multitude of strategic options available to protect your cannabis brand. Next week’s post will discuss some of these options in length. Stay tuned!

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