Businesses will only be able to secure a trademark in the State of California, leaving their intellectual property, branding, and other valuable assets defenseless nationwide. Because interstate trade of federally-prohibited items is still a serious crime, California cannabis businesses can only operate within state lines, but consumers in other states may not be aware of this when they see a recognizable brand on their local shelves.
Cannabis flower, and the concentrates made from it, are difficult products to brand, due in no small part to the confusing way marijuana has been named over the years. Some cultivators have developed strains through generations of selective breeding only to have that name used by other growers with a similar plant. The ability to trademark cannabis products within the state alleviates some of this concern for new products but comes with challenges for existing strain names.
(Attorney Stewart) Richlin alluded to this concern, explaining, ‘it’s good to be able to protect names as long as it’s not used in a tricky way or someone tries to protect a name that is already public. A difficulty with trademarking cannabis is flavors or strains that are already in the public domain. It will be interesting to see if companies change strains to trademarkable names. If someone were to trademark ‘Grape Ape,’ what will collectives already selling it do? Now, it’s a court case where one person is going to steal a name that many use. Some retailers will modify the name to a similar variation, i.e. Grape ‘Monkey.’ Consumers will be confused. When they go looking for Grape Ape, retailers will say, ‘we have Grape Monkey.’”