Generally, the United States Patent and Trademark Office (the USPTO) has refused registration of cannabis trademarks because the “use in commerce” requirement under the Lanham Act means “use in lawful commerce.” Because cannabis products have been prohibited under federal law, the USPTO has denied registration of cannabis trademarks because they fail the “use in commerce” test.
In December 2018, Congress removed “hemp” from the Controlled Substance Act ushering in the legalization of products made from cannabis sativa and other cannabis plants that contain no more than 0.3% delta-9 tetrahydrocannabinol (THC).
Consequently, cannabidiol (CBD) that is derived from hemp that contains no more than 0.3% THC are no longer controlled substances under the federal Controlled Substances Act.
The use of CBD in food, dietary supplements or substances undergoing clinical investigations without the approval of the United States Food and Drug Administration may violate the Federal Food, Drug, and Cosmetic Act, but other products are now legal pursuant to the 2018 Federal Farm Bill.
Based on recent guidance, the USPTO will no longer refuse registration for cannabis trademarks on goods applications filed after December 20, 2018 provided the goods are derived from hemp and otherwise comply with the 2018 Farm Bill.
Applications for cannabis trademarks for goods derived from hemp made prior to December 20, 2018 will be refused because those applications were submitted before the 2018 Federal Farm Bill legalized such goods.
The USPTO guidance also provides similar rules for cannabis trademarks on related services. Applications for these services will also be analyzed for compliance under the 2018 Federal Farm Bill.
This means that applicants claiming cannabis-related services involving cultivation or production of hemp will need to explain the licensing authority pursuant to which the applicant is legally authorized to cultivate or produce the hemp or hemp-derived products.
Do you produce or are you planning to produce a hemp- or cannabis-related product or service? Give Matthew or Conner a call at McLaughlin, PC to discuss your legal status and the appropriate steps to take to protect your brand and business.