trademark
Can I register a trademark for a cannabis hemp business?
07/25/19 Trademark
By Sadeer Farjo, JD
Many states have legalized marijuana. Similar to other companies, cannabis hemp businesses also want to protect their brand with a federal trademark registration.
Can a cannabis hemp business get trademark protection for their marijuana-related product?
Even though some states (including Michigan) have legalized Marijuana for certain purposes, cannabis-related products are still restricted according to federal law. One of the requirements to get a trademark registration is that the use of the trademark must be lawful.
How is marijuana defined?
In 2018 President Trump signed the Farm Bill which removed hemp that contains no more than .3% THC from the list of controlled substances. Generally speaking the definition of marijuana, under the Controlled Substance Act, does not include hemp that contains less than .3% THC.
Does that mean I can register a trademark for hemp and CBD products (that are derived from hemp) as long as the products contain no more than .3% THC?
According to the United States Federal Food, Drug, and Cosmetic Act (FDCA) marijuana, hemp, and CBD goods that are ingestible are not lawful. Thus it leads us to believe that food, drinks, and supplements containing marijuana, hemp, and CBD are not registrable without approval from the FDA.
Can any CBD or cannabis hemp products or services be registered?
Maybe. There is a very strong argument that CBD topical creams containing less than .3% THC can receive a trademark registration. Additionally, marijuana educational and advocacy services can receive trademark registration.
A product that is intended to be used for purposes other than marijuana related uses, but just so happens to also be used by some people for marijuana, can potentially be registered if that product disclaims the marijuana use. For example, the United States Patent and Trademark office registered the trademark BAKEBROS (Reg. No. 5760821) for "Smoker's articles, namely, smoking pipes and oral smokeless vaporizers, and not for use with marijuana-related goods."
A Trademark application process for a cannabis hemp business and other related goods and services can be complex. You are encouraged to schedule a consultation with us by clicking here.
The brief post above is just informational. It does not create an attorney-client relationship. You are not to rely on the above information, rather, you should seek a competent legal counsel to advise you for your particular situation.
US Supreme Court Allows an Allegedly Immoral Trademark to be Registered
06/25/19 Trademark
The U.S. Supreme Court ruled that the previous trademark law that banned obscene trademarks violates the First Amendment's Freedom of Speech.
The decision was focused on a California clothing designer who wanted to register FUCT as a trademark. The United States Patent and Trademark Office turned him down explaining that the word FUCT sounded like an obscene word.
The Supreme Court said such trademarks are protected by the first Amendment.
Selecting a Trademark
10/17/11 Trademark
One of the most important things to consider when selecting a trademark is the trademark's strength. Below are the categories of trademarks listed by their respective strength.
Fanciful trademarks
Fanciful trademarks (strongest) are marks composed of a word(s) that is made-up. Fanciful trademarks usually have no meaning; for example, the trademark Kodak for film cameras.Arbitrary trademarks
Arbitrary trademarks are also strong trademarks and are usually made up of a real word or words, but such words have very little to do with the product; for example, Apple for computers.Suggestive trademarks
Suggestive trademarks are also considered strong. They are marks that are usually composed of real words that have some characteristics with the product/service, but that the consumer to make a mental step to figure out such association. For example the trademark Coppertone, used for sunscreen.Descriptive trademarks
Descriptive trademarks are usually considered weak marks. They are often made up of word(s) that describe the product/service's characteristics. Descriptive marks do not require the consumer to make any mental step to understand the association with the product/service. For court has held BED & BREAKFAST REGISTRY was descriptive for lodging reservation services.Generic Terms
Generic terms cannot be registered as trademarks. The 7th Circuit Court explains that "[a] generic term is one that is commonly used as the name of a kind of goods." For example ANALOG DEVICES was held to be generic in references to devices with analog capabilities.I hope this short guide will help you in selecting a trademark.
If you would like help registering your trademark, please book a consultation with us here.
To learn more about trademark law you can read our short article entitled "What is a trademark?" or visit the United States Patent and Trademark Office website https://www.uspto.gov/trademark