Examination of Trademarks for Cannabis and Cannabis-Related Goods and Services at the United States Patent and Trademark Office
May 15, 2019
The United States Patent and Trademark Office (USPTO) has issued a new examination guide titled “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill. This guide provides helpful information for applicants of cannabis related goods and services.
Historically federal trademark protection has not been available for marijuana and cannabis-derived products. Trademark law prohibits the registration of products that cannot be lawfully sold across state lines in the United States. The Controlled Substance Act prohibits interstate commerce of marijuana and marijuana related goods, including all parts of the Cannabis sativa L.
The newly issued USPTO guidelines are in response to the 2018 Farm Bill which made certain changes relating to the production and marketing of “hemp,” defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” Among these changes included removing “hemp” from the CSA definition of marijuana, which means that cannabis plants and derivatives such as CBD that contain no more than 0.3% THC are no longer controlled substances under the CSA. The USPTO is providing the following guidance for trademark application for hemp goods and services:
Applications filed on or after December 20, 2018: Trademark applications encompassing cannabis or CBD will not be refused under the CSA if the goods are derived from “hemp” as defined in the 2018 Farm Bill and the identification of goods specifies that they contain less than 0.3% THC on a dry-weight basis.
Applications filed before December 20, 2018: Trademark applications encompassing cannabis or CBD will be refused due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA because the goods violated federal law when the application was filed. However, applicants will be given the opportunity to modify the filing date of the application to December 20, 2018.
Applicant’s should be aware that the 2018 Farm Bill explicitly preserved the Food and Drug Administration’s (FDA) authority to regulate products containing cannabis or cannabis-dervived compounds under the Federal Food Drug and Cosmetic Act (FDCA).
Thus, for the time being registration of marks for foods, berverages, dietary supplements or pet treats containing CBD will still be refused as unlawful under the FDCA.
For more information on navigating the trademark examination process for cannabis marks at the USPTO, please contact us.
Stephen B. Samlan
Knechtel, Demeur & Samlan
525 West Monroe Street, Suite 2360
Chicago, IL 60661
Phone: (312) 655-9900
Facsimile: (312) 655-1917