One such company is Stanley Brothers Social Enterprises, LLC (“Stanley”), a Colorado-based company that makes, among other things, food products and dietary supplements that contain CBD. Relying on the 2018 Farm Bill’s provisions removing industrial hemp derivatives from the CSA, Stanley sought to register a trademark for its CBD products, sold as food supplements.
The United States Patent and Trademark Office rejected the application, deeming the CBD products “unlawful” under both the CSA and the Food Drug and Cosmetics Act (“FDCA”). Although Stanley appealed, a unanimous panel of three Administrative Trademark Judges sitting on the Trademark Trial and Appeal Board recently affirmed that rejection, creating market confusion and uncertainty given the 2014 and 2018 Farm Bills, which many observers regarded as having effectively legalized the sale of products containing CBD.
Notably, the Board explained its ruling without passing on the referenced Farm Bills’ impact on the legality of CBD products by amending the CSA, except by way of a discussion of the case background. The Board expressed its opinion that Stanley’s use of CBD in food products—tinctures of which droplets are intended to be added to foods or beverages—rendered those goods subject to the FDCA. The Board specifically noted that the FDCA prohibits “[t]he introduction or delivery for introduction into interstate commerce of any food to which has been added . . . a drug or a biological product for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public.” 21 U.S.C. § 331(ll). No other reported case relies on this provision.
The lesson here is that although the sale of CBD derived from industrial hemp is no longer criminalized under the CSA (so long as it complies with the provisions of the 2014 and 2018 farm bills regarding its cultivation), the TTAB at least regards any food product containing CBD to remain unlawful and therefore not subject to the branding protections afforded by a federal trademark. Aside from mustering further challenges to this interpretation of the FDCA, a good trademark strategy should consider marketing of CBD products that do not invoke use in food or other FDCA prohibitions. Perhaps if Stanley had sought to protect a CBD-only product (as opposed to dietary supplements infused with CBD), it may well have obtained a registration. Although the protection would not be as robust as that sought by Stanley, a CBD-only registration would still provide protection against third parties attempting to use a confusingly similar name in the CBD space.
The case is In re: Stanley Brothers Social Enterprises LLC, Case No. 86568478 (TTAB 2020).
