How to protect a cannabis company trademark

Because the medical marijuana, hemp, and CBD businesses are still in their infancy, many cannabis business owners are unsure if they qualify for trademark protection. The 2018 Farm Bill established a legal distinction between hemp and marijuana, as well as the legal status of regularly used cannabinoids and derivatives like CBD.

As a result, as stated in an Examination Guide published by the United States Patent and Trademark Office (“USPTO”) in May of 2019, significant developments in hemp-based trademarks have occurred. Here are the fundamentals of trademarking, with a focus on cannabis and hemp products at the federal and state levels.

What is a trademark?

Any word, symbol, product name, device, color, fragrance, or design that is used to differentiate goods or services from those offered by other companies or sellers in the market is referred to as a trademark or a service mark.

Trademarks protect business owners and their trademarks, as well as guaranteeing that their products are not used without their permission. Thanks to trademarks, which distinguish one product from another, consumers can make informed purchasing decisions concerning quality and safety.

Business owners can get “trademark rights” by legitimately using the mark on their products after federally registering the mark with the USPTO or a qualifying state registry.

What makes a trademark unique, and which varieties are the most effective?

Simply put, the more generic your trademark is, the higher the chances of it being contested by others. In the cannabis industry, avoid terms like “green,” “kush,” “cannabis,” “420,” “THC,” “Mary Jane,” and “weed” because they are overused.

The more distinctive your trademark, the better. Because distinctive marks are the most difficult to challenge, they are considered strong. The trademarks can be classified as follow:

  • Fanciful. Because they are created solely to serve as a trademark, fanciful trademarks are usually the most unique and difficult to challenge. Leafly and THCHEESE are two examples of fanciful trademarks.
  • Arbitrary. Arbitrary trademarks have their own identity. These strong marks are made up of a common word that has nothing to do with the product or service for which the trademark is being utilized. Level Blends and ROAM are two examples.
  • Suggestive. Suggestive marks are used to indicate a feature of a product or service. Because it frequently alludes at the product or service, this form of logo is useful for marketing and advertising. Seven Point, Re-Leaf, and Royal Highness, for example.
  • Descriptive. Adjectives that characterize a product or service are commonly used as descriptive marks. This covers words with a geographic origin, surnames, and alternate spellings. THC Design, Humboldt Green, and Los Angeles Chronic are examples of this type.
  • Generic. Generic terms are used to represent a category or type of goods or service, and they are never protected as trademarks. Denver Dispensary and Smoke Shop are two examples of this sort.

Descriptive and generic trademarks are the weakest kind of trademarks. These categories are easier to challenge because they are less distinct (but widely used in the cannabis industry).

Federal cannabis trademarks 

Marijuana is a controlled substance under the Controlled Substances Act (“CSA”), therefore selling, purchasing, or using it is unlawful at the federal level, even if it is legal in your city or state.

As a result, any name, product, or other asset that violates the law will be denied trademark registration by the USPTO. “The fact that the supply of a product or service may be permissible within a state is immaterial to the matter of federal registration when it is prohibited under federal law,” according to the Trademark Manual of Examining Procedure.

Any trademarks that cover cannabis or its byproducts will continue to be refused as long as cannabis is prohibited under the CSA.

A brand may be eligible for trademark registration provided it meets the CSA’s 0.3 percent THC standard, with the exception of dietary supplements, foods, beverages, and pet treats, hemp-derived goods and/or CBD products, as well as related products or services.

In addition, trademark applications for consulting services or commodities not directly related to cannabis, such as computer software, educational platforms, and brand apparel, may be considered by the USPTO.

State cannabis trademarks

Cannabis products, goods, and services that do not meet the USPTO trademark registration criteria may be eligible for state protection. If your company operates in one of these states, many of your items may be eligible for state trademark registration through an applicable registry.

While your state’s cannabis trademark jurisdiction is limited to its geographical bounds, it is a major increase in terms of protection over common law rights.

Businesses have a variety of problems when it comes to trademark registration for cannabis products, but it is vital to take the required procedures to protect your brand and maintain quality and safety. Consult a qualified cannabis or trademark attorney for more information and advice.

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