The U.S. Patent and Trademark Office issued newguidelineson May 2, 2019, making clear that trademarks for certain cannabis and cannabis-derived goods and services will now be eligible for federal trademark protection.
Cannabis trademarks will be eligible for registration as long as the applied-for goods and services: (1) are not regulated by the U.S. Food and Drug Administration; and (2) do not fall under the Controlled Substances Act’s definition of marijuana.
The 2018 Farm Bill recently removed “hemp” from the CSA’s definition of marijuana, which means that cannabis plants and derivatives (such as CBD) that contain no more than 0.3% THC on a dry-weight basis, and related services, are no longer federally prohibited. However, because the FDA is still conducting clinical investigations on CBD in certain products (i.e. foods, beverages, dietary supplements, and pet treats), the types of goods for which applicants may presently register CBD trademarks is limited.
The following is required for trademark registration:
- The description of goods or services must explicitly pertain to hemp, which contains no more than 0.3% THC.
- For applications that seek to register services involving the cultivation or production of hemp, the applicant will be required to confirm that it is licensed or authorized by a government authority to produce hemp.
- The application must have been filed after December 20, 2018, the date that the 2018 Farm Bill became law. For applications filed before December 20, 2018, applicants will have the option to amend their filing date, filing basis, and description of goods and services to overcome any refusal based on violation of the CSA.
The following are still not registrable:
- Trademarks for foods, beverages, dietary supplements, or pet treats containing CBD, even if it is derived from hemp, since CBD is undergoing clinical investigation by the FDA.
- Trademarks for goods or services derived from marijuana (which contains more than 0.3% THC on a dry-weight basis) still violate federal law and are not registrable in any category.
Given the interplay of several federal statutes and the rapidly changing nature of this field, it is best to consult your trademark counsel upfront about a specific brand protection strategy for cannabis-related trademarks.
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