The USPTO issued guidance on cannabis associated trademarks on May 2 (here’s a link and we’ve embedded it below). We’ve long seen denials of cannabis, hemp, and marijuana related trademarks based on TMEP §907 where the use in commerce forming the basis for the registration must be lawful. This same criteria has been fertile ground for litigating and invalidating many beer, wine and spirits marks where do-it-yourself applicants file before they’re properly permitted or licensed.

The new guidance from the trademark office acknowledges that the 2018 Farm Bill removed hemp and cbd products derived from hemp with less than 3/10 of a percent THC content from the Controlled Substances Act.

The USPTO’s new guidance reflects this change and proposes that:

  • The examining attorney allow hemp associated goods and services with applications filed after December 20, 2018 (the passage of the 2018 Farm Bill) which specify that the goods contain less than 0.3% THC.
  • The examining attorney give the applicant the chance to modify applications for hemp associated goods and services filed before December 20, 2018 to intent to use status and identify that the goods contain less than 0.3% THC.
  • The examining attorney should ask questions about hemp production and cultivation related applications and obtain evidence of the applicant’s authorization to provide those services.

Note: This guidance also cautions against assumption that all such products can obtain registration, noting examples such as a lack of FDA guidance and authority and some outright rejection of CBD or hemp-derived products under the Food Drug and Cosmetic Act. Such an application for foods, beverages, pet treats, or dietary supplements might require rejection assuming they are unlawful and the FDA has not approved the use.

Here is the full guidance: