With the federal legalization of hemp and cannabidiol (CBD) via the passage of the Farm Bill in 2018, cannabis-related businesses have been on the rise. Cannabis is a multi-billion dollar industry and rapidly increasing by the day. It seems like everyone is getting in on the action, myself included. Cannabis brands are popping up left and right and now that the possession and distribution of hemp and CBD are legal in almost every state, business owners are taking the necessary steps to differentiate themselves in the marketplace, and that includes seeking trademark protection.
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from others. A service mark is a word, phrase, symbol, or design that identifies and distinguishes the source of a service rather than goods. The term “trademark” refers to both trademarks and service marks. Things you can trademark include, but are not limited to, your business name, logo or slogan, name of your blog or podcast, product names, and the name of a signature framework. If you want to own your brand and have exclusive rights to using it in connection with the goods or services you provide, then federal trademark registration is the only way to do so.
Because trademark registration is a federal matter and cannabis is still an illegal substance, the United States Patent and Trademark Office (USPTO) prohibits the registration of any brand that has illicit goods or services associated with it. The Farm Bill legalizes hemp and CBD that contain a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% on a dry weight basis. Higher concentrations of THC are still illegal according to federal law and cannabis as a whole is still governed by the Controlled Substances Act (CSA).
The USPTO has created a special department in which all cannabis-related trademarks are assigned. They are placed under strict scrutiny to determine whether or not the marks are in compliance with federal law. This has led to the rejection of many trademark applications because the applications must contain specific language that ensures compliance with federal law and the goods or services must be ones that also comply.
Canna-brands that sell edibles or any CBD products that are ingested, are not capable of trademark protection at this time because they are in violation of the Food, Drug and Cosmetics Act and the FDA has not formally approved any cannabis, cannabis-derived, or cannabidiol (CBD) products currently available on the market, with the exception of one cannabis-derived drug product: Epidiolex (CBD), and three synthetic cannabis-related drug products: Marinol (dronabinol), Syndros (dronabinol), and Cesamet (nabilone), all of which are available solely with a prescription from a licensed healthcare provider.
If you’re serious about standing out from your competitors in this canna-biz, then you most certainly should obtain federal trademark protection and hire an attorney experienced in filing canna-brand trademark applications.
Lerae Funderburg, Esq. is a trademark attorney with experience protecting cannabis businesses and brands. Contact her at [email protected] to legally protect your brand. Her motto: “Don’t just elevate, elevate legally.”