In early May, in lieu of the passage of the Farm Bill in late 2018, the United States Patent and Trademark Office (USPTO) provided clarity on the ability to register trademarks at the federal level for goods and services involving CBD. The USPTO will no longer refuse applications for CBD related marks applied for on or after December 20, 2018 provided the goods otherwise comply with existing federal regulations, including those enforced by the FDA. Federal trademarks will remain unavailable for goods actually containing THC, although certain legal markets maintain state based trademark registration programs that allow for protection of products containing THC at the state level.
The availability of federal trademarks for CBD goods provides a new avenue for brands selling cannabinoid infused products to potentially protect their identity with trademarks federally and for CBD brands to better control brand identity as they consider introducing THC infused product lines. Trademark protection can also prove to be an asset in distinguishing a brand from competitors, building brand identity amongst customers, combatting counterfeit merchandise and maintaining leverage not only with investors, but also when entering new, emerging markets. The availability of marks for CBD goods also provides fertile opportunities for enterprising individuals and companies, including potential or existing competitors, to claim rights to popular or emerging THC brands that have not protected rights in complementary goods at the federal level. Unfortunately, improperly applied for trademarks or trademarks filed under false pretenses can be a tremendous hurdle to brands trying to control and protect their brand identity. Errors or missteps can prove to be tremendously costly. However, when done properly, securing trademarks, at the state, federal and/or international level increases brand value and visibility.
Author, Brandon Dorsky, Esq.
Brandon Dorsky, Esq. is an attorney specializing in cannabis and intellectual property law. He operates his own private practice serves as Of Counsel at California’s largest cannabis law firm. For consultations and advisement concerning legal issues in the cannabis industry, including issues involving trademarks, contact Brandon Dorsky at firstname.lastname@example.org or email@example.com.
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