Despite the fact that cannabis has been legalized for medical and recreational use in many states, it’s still not legal under federal law. The United States Patent and Trademark Office (the USPTO) will not register trademarks for goods or services that violate the federal law. Therefore, until recently, it has been all but impossible to register a trademark for cannabis products that contain any level of THC or CBD.
But…There is some hope!
The 2018 Farm Bill legalized hemp and hemp-derived products for commercial use. Specifically, it is now lawful to sell products or goods that contain less than 0.3 percent of THC. Which means…the USPTO will now permit trademark registrations for those types of products. Woohoo! ….right?
Well, there’s one more problem. The Food and Drug Administration (the FDA) still hasn’t approved the use of hemp-derived products in food or food supplements. So, unfortunately, it’s still an uphill battle to register trademarks for hemp-derived products in food.
Don’t cannabis businesses deserve the same level of brand protection as other businesses? Of course they do! Fortunately, there are still a few steps you can take to protect your brand and trademarks for your cannabis business or cannabis products.
Intent To Use:
One option to protect your trademark for your cannabis products is to file a trademark application with the USPTO on an intent to use basis. Basically, this means you aren’t selling the products right now, but you intend to do so soon. You wouldn’t be the first either! There’s been a huge influx of intent-to-use applications being filed with the USPTO for hemp-derived products that don’t currently qualify for federal registration. This allows your business to get your foot in the door and stake your claim on your trademark while the USPTO figures out how it will apply these changing regulations to trademark applications. If the future law allows the sale of these products, then the applications will already be in the system and the process will be started.
Rely on State-Level Registration:
Every state allows for registration of trademark registration at the state level. So, if your specific state permits medical or recreational cannabis use then you can typically register a trademark for your products or your business at the state level. It won’t be a great as federal trademark registration; it will only apply to your local competitors. You won’t be able to take down the competition in other states if they try to use your trademark. Though it’s better than nothing and you’ll have some sort of registration and some acceptance at the state level.
Register Trademarks for Related Products:
Maybe you’re selling cannabis products but you’re also selling merchandise like hats or hoodies. You can potentially register a trademark for those products. Of course, this won’t apply to your cannabis products, but it will nonetheless be a federal trademark registration, and will therefore give you some level of protection, for your business name, product name, or logo.
Another example is if you sell THC or CBD edibles. Try creating edibles that don’t contain THC or CBD. In other words, just sell food under your trademark. If you make THC cookies, add non-THC cookies to the menu. You can then register your trademark for your cookies. Again, it won’t apply to any of your actual cannabis products, but it will, at least, give you a federal registration of your trademark as it relates to food.
Copyright protection only applies to parts of your brand that have some artistic or creative element to it. This could be your logo if it has some creative design or artistic drawing. Or if you have a creative package design you can potentially register a copyright for that. This won’t give you the same protection as a trademark, but it’ll prevent competitors from using your brand’s artistic designs and elements.
And the step everyone should be doing regardless if you decide not to take any other steps is…
Keep a record of when, how and where you used your trademark for your cannabis products. This will help if/when cannabis becomes legalized at the federal level. Let’s pretend the federal government legalizes it, then one of your competitors just happens to file a trademark application for an identical or similar name before you do. In the US, trademark rights are based on the first to use a trademark, not the first to file a trademark registration. If you can prove you were using the trademark in commerce prior to the date of first use of your competitor, then you may have grounds to cancel or oppose their trademark registration since you have priority of use.
As you can tell, it’s still a bit of a challenge to get a registered trademark for cannabis products. But these are some good options for protecting the brand and trademarks for your cannabis products or cannabis business while we wait and see how future regulations unfold.
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