Can I trademark a marijuana, hemp or CBD brand?
Marijuana is quickly becoming legalized, decriminalized, more mainstream, and less taboo. Many businesses want a stake in this industry. It is critical to trademark any brand to protect from those who want to steal ideas, rip off products, or profit from other businesses’ goodwill.
Unforunately, brands cannot trademark marijuana products at the federal level, they can, however, in states where marijuana is legal.
Marijuana remains illegal at the federal level but it is legal in many states, so where does that leave your brand regarding trademarks? Goods and/or services to which the mark is applied must comply with all applicable federal laws. See In re Brown, 119 USPQ2d 1350, 1351 (TTAB 2016) (citing In re Midwest Tennis & Track Co., 29 USPQ2d 1386, 1386 n.2 (TTAB 1993) (noting that “it is settled that the Trademark Act’s requirement of ‘use in commerce,’ means a ‘lawful use in commerce’”)); In re Pepcom Indus., Inc., 192 USPQ 400, 401 (TTAB 1976); TMEP §907. Since the USPTO is a federal entity, it will not allow a business to trademark a marijuana brand selling marijuana products. Trademarking marijuana products or paraphernalia is prohibited under the Controlled Substances Act:
“If the record indicates that the mark itself or the goods or services violate federal law, an inquiry or refusal must be made. For example, evidence indicating that the identified goods or services involve the sale or transportation of a controlled substance or drug paraphernalia in violation of the Controlled Substances Act ("CSA"), 21 U.S.C. §§801-971, would be a basis for issuing an inquiry or refusal. See In re JJ206, LLC, 120 USPQ2d at 1569-70; In re Brown, 119 USPQ2d at 1351-53. Subject to certain limited statutory exceptions, the CSA makes it unlawful to manufacture, distribute, or dispense a controlled substance; possess a Schedule I controlled substance; or sell, offer for sale, or use any facility of interstate commerce to transport drug paraphernalia. See 21 U.S.C. §§ 812(b)(1)(B), 841(a)(1), 844(a), 863.
A marijuana brand owner’s best bet is to either trademark hemp products, CBD products, or related products not containing marijuana as a placeholder until marijuana is legalized at the federal level. Applications with CBD or hemp will need a disclaimer stating that the products “contain cannabidiol (CBD) solely derived from hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.” The USPTO has determined this lawful under the 2018 Farm Bill.
Lastly, the other approach is trademarking the related products that don’t contain the federally banned substances. For instance, instead of trying to trademark weed brownies, a business could sell and trademark normal brownies in the interim. Brands can also trademark their products for use with tobacco, however, your business must actually be selling those products and be able to prove they have sales.
If you need assistance trademarking your marijuana, hemp, or CBD, brand, please reach out here!