Approaching 420: cannabis trademark scene one year on from USPTO examination guidelines – Lexology

Introduction

Products involving CBD and hemp seeds have been flooding the US market and businesses are seeking to protect their brands in connection with products in this emerging market, given the legalisation of various forms of marijuana in individual states. Since the United States Patent and Trademark Office (USPTO) released its guidelines for examining trademark applications for cannabis and cannabis-related goods and services in May 2019, the legal landscape concerning the types of goods and services for which businesses can obtain trademark protection is constantly evolving. While the USPTO will not allow applicants to register federal trademarks for goods in violation of federal law, it does allow applicants to register trademarks for cannabis and cannabis-related goods and services if their commercial use is lawful. This article examines the types of cannabis-related goods and services that can obtain trademark registration and where they can be registered.

What can be registered federally?

To determine what goods and services involving cannabis can be registered, the USPTO will analyse all federal trademark applications to make sure that they comply with the Controlled Substances Act (CSA) and the Farm Bill 2018. The Farm Bill removed hemp from the CSA’s definition of ‘marijuana’, which allows cannabis plants and derivatives, such as CBD, which contain no more than 0.3% delta-9 THC on a dry-weight basis to no longer be controlled substances under the CSA. If an application for goods relating to cannabis or CBD concerns goods derived from hemp, the application could be granted if it specifies that the goods contain less than 0.3% THC and if the goods or services comply with other federal laws, including the Federal Food, Drug, and Cosmetic Act (FDCA).(1) However, if the identified goods contain more than 0.3% THC, the application will be denied as the goods identified will violate

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