What is delta-8 THC?

Delta-8 THC is a cannabinoid found in cannabis. The natural quantities of delta-8 found in cannabis are pretty low, so to create usable amounts of it, it typically has be synthesized from hemp.

Is it Legal? Well…maybe.

*Marijuana* is a schedule I substance outlawed under the Controlled Substance Act, but the lower-thc cannabis plant – Hemp – was removed from Schedule I back in December 2018. Although Schedule I continues to list “tetrahydrocannabinols,” there is an exception listed for “tetrahydrocannabinols in hemp.” So delta-8 THC isn’t unlawful under the CSA.

Delta-8 THC also isn’t included in any FDA-approved pharmaceutical, so it doesn’t fall under the FDCA (Federal Food, Drugs, and Cosmetics Act) in the way that hemp-derived CBD does.

These were the arguments that attorney Dustin Kovacic made last year to overcome the USPTO’s initial CSA and FDCA Unlawful Use Refusals and convince them to register his client’s mark PLIFT. Although the goods identification does not specifically reference hemp-derived delta-8 (or hemp-derived delta-9 THC, also present in the actual goods), the specimen and record explicitly made it clear that the goods contained these items. Although applications for unlawful goods have absolutely been registered at the USPTO in the past by sneaking past the examiner their exact nature, that was absolutely not the case here. This mark registered in June 2024.

Attorney Andrea Steel found this registration and shared it on LinkedIn the other day, starting a whole conversation about whether this indicates a larger policy shift in the USPTO’s treatment of hemp-derived THC cannabinoid products. Although the USPTO hasn’t made any explicit policy statements on cannabis goods/services since a rather vague May 2019 Examination Guide on the subject, I know from my experience as a trademark examiner on the controlled substances work team at the USPTO from 2019-2021 that their internal policies absolutely have changed several times.

https://www.uspto.gov/sites/default/files/documents/Exam%20Guide%201-19.pdf

For example, while the USPTO formerly accepted identifications of goods referring to “hemp,” identifications referring to hemp now generally have to include the chemical definition for clarifying purposes.

However, does this application really indicate a broader policy shift? There’s evidence indicating that that’s not the case.

There have been several applications to register trademarks with delta-8 THC goods identifications that have been pending at the USPTO unexamined for years. This sort of unofficial, unannounced suspension is something I’ve unfortunately noticed on several occasions when it comes to applications the USPTO doesn’t really want to deal with.

It does not appear that any applications which explicitly state delta-8 THC in the goods identification have been registered at the USPTO still, and the USPTO continues to ignore several of these applications entirely.

Affected applications include:

  • LEAFY8NATURAL HEALING (with design) for a variety of hemp flowers and accessories, including “Hemp flower containing delta-8 tetrahydrocannabinol (delta-8THC) for use as a smoking herb.” Although this application was filed on Aug.05, 2021, it has yet to be examined by the USPTO over 3 years and 5 months later.
  • VEGANCBD for a variety of cosmetic and beauty products, including “Cosmetic body care preparations, namely, skin care oil, massage oil, lotion, skin cream in liquid or solid form, hand cream, body cream, bath bombs, and/or lip balms; all of the foregoing with or without Nano (nanotechnology) and/or CBG (cannabigerol) and/orCBD (cannabidiol) containing goods derived from cannabis and/or hemp with aDelta 8 THC and/or Delta-9 THC concentration of not more than 0.3% on a dry weight basis.” It was filed Nov. 27, 2022 and has yet to be examined over 2 years and 1 month later.
  • TWOROMANTIC for a variety of cigar and cigar accessories, including “Smokers’ mouthpieces for cigars and cigarettes for use with or without cannibidiol (CBD) and other related Cannabinoids which include but is not limited to such as CBG, THCa,THC, THCv, Delta 8 THC, THVo, etc. all less than .3% Delta 9 THC/Delta 8 THC by dry weight basis.” Although this application was filed on May 30, 2023, it has yet to be examined by the USPTO over 1 year and 7 months later.
  • SLAPZ for a variety of supplements and pharmaceutical preparations including “Dietary and nutritional supplements containing delta-8 THC derived from hemp.” Although it was filed inMay 30, 2023, it still has yet to be examined by the USPTO over 1 year and 7 months later.

Those applications with Delta-8 THC identifications in them that have been examined, CSA or FDCA refusals continue to be issued.

  • HI ON NATURE received CSA and FDCA Unlawful UseRefusals on Dec. 17, 2024, ~6 months after PLIFT registered in two applications– for a variety of goods/services including “Non-medicated lotions for skin and body which may contain delta-8 THC derived from hemp.”

What does this mean for the future of applications to register delta-8 THC and other hemp-derived cannabinoids at the USPTO?

It’s unclear. The USPTO’s policy on this continues to be arbitrary and inconsistent, but the approval of PLIFT indicates at least some hope that their approach to these apps may change soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.