By Chloe Palinsky, 3L —
New laws and changes in the cannabis industry are creating a space in which entrepreneurs and start-ups can grow. These changes give rise to innovation and the evolving laws allow anyone in the space to push against the gray areas and have a first-hand experience in all the related legalities. One of the new legal issues is the possibility of having cannabis trademarks registered with the USPTO. The 2018 Farm Bill allowed for the classification of hemp and hemp derived products to be regulated by the FDA rather than the Substance Control Act. In the case of CBD this means that CBD derived from the hemp plant and not the cannabis plant “may” be legal so long as it meets other criteria. One of such criteria being the CBD must contain no more than 0.3% THC. After the passing of this bill the FDA has been working on completing studies and creating consumer safety reports to set guidelines. Despite the passing of the 2018 Farm Bill, the only item on the market that truly exists legally and approved is a medication approved for epilepsy.
So, how and why does this affect trademark filings? In May 2019, the USPTO reviewed the possibility of registering a mark for cannabis-related goods and services. Their verdict was that applications filed after December 20, 2018 (the date of enactment of the 2018 Farm Bill) would not be denied based on illegality. For applications filed before enactment of the Farm Bill an applicant can either use an amendment process or abandoned the previous application and reapply if the mark complies with the regulation that it relates to a hemp or hemp derived product rather than a cannabis derived product.
This doesn’t mean that the USPTO will now be approving applications for these products but it does mean they will no longer be rejecting them for being illegal products. The ability to have a mark approved will still be difficult. The USPTO asks that in applications applicants provide a required farm license to produce hemp and also provide approvals from the USDA as well as approval from any state or tribunal agencies. The USPTO focuses on the source of the product for their registration so the precedent is set through the rejection and approvals will dictate the future of trademarked CBD products. Although the USPTO is making it a difficult standard to attain a mark, there is now the possibility and it is becoming a conversation.
As the cannabis industry expands and both federal and state agencies explore the legalities and safety of the different products, start-ups and entrepreneurs who are in the space or hope to be, are on the front lines of what to do. It is a win for the industry that the USPTO is at least open to registering cannabis trademarks.