The examination guide included a caveat that this expansion only included hemp-based products, and that CBD derived from marijuana was still unlawful under federal law. Furthermore, the USPTO warned that because CBD use as a food additive is still under investigation by the FDA, the use of CBD in foods or dietary supplements is still unlawful and marks seeking registration for such use should be refused.
The USPTO has now issued refusals of several applications for marks that are used in connection with CBD oils. These refusals offer some clarification of the examination guide. The USPTO generally takes the position in these refusals that CBD oils are flavored and in most cases designed to be added to food and drinks, and therefore the goods are unlawful. Because the goods are unlawful, the USPTO will not issue a registration in connection with those goods.
One popular CBD company appealed their refusal to the Trademark Trial and Appeal Board (TTAB) recently, but the TTAB affirmed the refusal in a precedential opinion, finding that, even if the CBD has less than 0.3% THC, it is unlawful to offer CBD as a dietary supplement. The TTAB acknowledges that the hemp-derived product applicant produces may well be lawful, but once CBD is sold as a dietary supplement or added to “food” under the definition of the Food, Drug & Cosmetics Act, it becomes unlawful. Accordingly, whether an applicant’s CBD is derived from hemp or marijuana seems to be irrelevant if the product is designed to be added to “food.” The TTAB also noted that, so long as there are “substantial clinical investigations of CBD” ongoing, the USPTO will consider CBD oils to be unlawful for purposes of federal trademark protection.
One important takeaway here is that the TTAB’s practice is to presume the goods are lawful unless the application record indicates a violation of federal law or when the activities involve a per se violation of federal law. The latter was true in this case, but the TTAB seems to be signaling that there may be a path forward should the FDA ever carve out an exception for certain types of hemp-derived CBD.