The United States Patent and Trademark Office (USPTO) once again revised its stance on certain cannabis brand trademark applications. Specifically, applications that cover cannabidiol (CBD) products will no longer be immediately accepted and may ultimately be rejected as violating the Office’s Lawful Use Rule.
Until recently, brand owners seeking federal protection of their brands from the USPTO for CBD and other marijuana extracts could get their applications allowed so long as the applicant declared the claimed goods did not violate federal law (i.e., the Controlled Substances Act, or CSA) and therefore, the USPTO’s Lawful Use Rule. Put simply, while a cannabis brand owner could not register a brand to cover substances classified as CSA Schedule 1 substances (e.g., cannabis itself, or items like marijuana cigarettes), it could register marks for ancillary goods and services not prohibited by the CSA.
Quick Legal Background on CBD
The CSA defines marijuana to include “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resins.” 21 U.S.C. §802(16).
Significantly, the CSA definition of marijuana expressly excludes “the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” Prior to December 2016, CBD was typically considered as being outside the definition of marijuana, and therefore not included among the CSA’s Schedule 1 substances.
On Dec. 14, 2016, the Drug Enforcement Agency (DEA) published a “Final Rule,” or a new drug