The United States Patent and Trademark Office (USPTO) published a Cannabis Trademark Examination Report on May 2, 2019. This report is titled the Examination of Marks for Cannabis and Cannabis Related Goods and Services after the Enactment of the 2018 Farm Bill.

The report addresses how the USPTO and its trademark examination attorneys will analyze certain cannabis, cannabidiol, and hemp-related trademark applications before and after the enactment of the 2018 Farm Bill.  Since the enactment of the 2018 Farm Bill there has been a steady increase of trademark applications covering cannabis-related products and services.  Because of the confusion surrounding the federal laws involving commerce of cannabis-related goods and federal trademark registrations available to owners seeking brand protection for CBD and hemp products, the USPTO offered the report to set the record straight.

The Cannabis Trademark Examination Guide outlines the general rule that use of trademark must be lawful under federal law to be the basis for federal registration under the US Trademark Act.  It further states that the US Trademark Office refuses to register trademark for goods and/or services that show a clear violation of federal law, regardless of the legality of the activities under state law.  A determination of whether commerce involving cannabis and cannabis-related goods and services, such as CBD and industrial hemp, is lawful requires review of several different federal laws, including:

The 2018 Farm Bill changes certain federal laws concerning the production and marketing of cannabis-related products, such products containing CBD and industrial hemp (among others).  These certain changes include removing hemp from the Controlled Substances Act’s definition of marijuana.  In other words, cannabis plants and derivatives, such as CBD, that contain no more than 0.3% of THC are no longer controlled substances under the CSA.  This has opened the door for many business owners seeking brand protection through federal trademark registrations in connection with their cannabis, cannabidiol, and hemp-related products.  The products covered in the trademark application must be derived from hemp and contain no more than 0.3% THC.  Thus, the scope of the trademark application must be limited to products that are compliant with federal law or the USPTO examining attorney will refuse registration of the trademark.   Further, for all applicants that reference “hemp” in their identification of products and/or services, the USPTO examining attorney will issue office actions that inquire about the applicant’s authority to produce or manufacture hemp-derived or CBD products.  Thus, trademark applicants will be required to provide additional statements to the USPTO (under oath) to confirm that their product and/or services are of lawful-use under the 2018 Farm Bill.

The Cannabis Trademark Examination report further states that applicants should be aware that even if the identified products (such as CBD products containing no more than 0.3% THC) are legal under the CSA, not all products for CBD or hemp-derived products are lawful under the 2018 Farm Bill.  Such products may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act (FDCA).  For example, the use in foods or dietary supplements of a drug or substances undergoing clinical investigation without approval of the US Food and Drug Administration violates the FDCA.  The 2018 Farm Bill explicitly preserved the FDA’s authority to regulate products containing cannabis or cannabis-derived compounds under the FDCA.  CBD is an active ingredient in FDA approved drugs and is a substance undergoing clinical investigations.  Therefore, the USPTO states that registration of trademarks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp, as such goods may not be marketed or sold in interstate commerce.

Cannabis, CBD, and hemp-related goods and services has become a unique area of trademark law and if you or your business is seeking brand protection for CBD or other hemp products, please contact our Chicago trademark attorneys to see how we can provide assistance.