FAQ on Cannabis Trademark Applications

Cannabis, CBD, Hemp. The products are in the news and on the shelves. Businesses should be considering filing for trademark applications to protect their intellectual property. This article answers your FAQ re cannabis trademark applications.

Q. Will the USPTO issue a trademark for goods/services relating to marijuana?

For the USPTO to issue a trademark, the use of a mark in commerce must be lawful under federal law. Cannabis and cannabis-related goods and services have traditionally not been lawful pursuant to such statutes as the Controlled Substances Act (CSA) and the Federal Food Drug and Cosmetic Act (FDCA). Accordingly, the USPTO has typically denied such registrations. With the passage of the 2018 Farm Bill, the USPTO no longer has a blanket denial of all cannabis-related trademarks. On May 2, 2019, the USPTO issued Examination Guide 1-19, explaining its current position on trademark applications for cannabis and cannabis-related goods and services.

Q. What changed with the 2018 Farm Bill?

The 2018 Farm Bill was enacted on December 20, 2018. It amended the Agricultural Marketing Act of 1946 (AMA) and some other federal authorities relating to hemp. Hemp encompasses the cannabis plant and its components, derivatives, or extracts* that have a THC concentration of not more than 0.3 percent on a dry weight basis. The Farm Bill removed “hemp” from the CSA’s definition of marijuana. Therefore, so long as cannabis plants and derivatives, including CBD, contain no more than 0.3% THC on a dry weight basis, they are no longer considered controlled substances.

*This is not the full definition of hemp. See the statute for a full definition of compounds covered.

Q. So does that mean CBD is legal now?

The Farm Bill changed federal law relating to the production and marketing of hemp. So long as hemp products are below the 0.3% maximum THC level, companies may be able to produce and market those goods and ancillary services. Not all CBD or hemp-derived products, however, are lawful. The goods have to also pass muster under other federal statutes. So far, the FDA has not approved use of these products in food or dietary supplements without clinical investigation and without FDA approval.

Q. How does the Farm Bill affect trademark applications?

With the declassification of hemp, the USPTO has indicated that it will accept applications for trademarks associated with cannabis and CBD goods only if 1) the goods are derived from hemp; 2) if the goods do not fall under other federal restrictions; and 3) the application was filed on or after December 20, 2018. Acceptable applications must specify in the identification of goods that they contain less than 0.3% THC. Cannabis and CBD goods that are beyond the 0.3% maximum threshold would be considered derived from marijuana and would still be illegal. Any applications for such goods will be denied.

Q. What if I filed my application before the Farm Bill went into effect?
The USPTO will give you the option to amend the filing date to December 20, 2018 and the filing basis of the application, provided you can prove the goods are derived from hemp (under the statutory definition). If the application was based on use in commerce, the applicant will be given the option to amend its application to an intent to use application and show use after the statute’s date of enactment. Amending your application does not mean that your mark will proceed to registration. The USPTO examiner will conduct a new search of USPTO records for conflicting marks. The applicant also has the right to file a new application.

Q. Can I register a trademark for a food or dietary supplement containing CBD or other hemp derivatives?

No. Not yet. The USPTO will still refuse registration of marks for foods, beverages, dietary supplements or pet treats containing CBD because they are still unlawful under the FDCA.

Q. What about marks for services relating to cannabis and cannabis production?

The USPTO will still consider whether the services described in the trademark application comply with all applicable laws. For example, manufacturing or distributing marijuana is still illegal. If the services relate to hemp as defined in the Farm Bill, the USPTO will consider their legality. If the agency determines the services are legal, it will consider the application as it would any other trademark application. For applications that relate to hemp services (i.e. services relating to hemp products containing less than 0.3% THC), applicants may amend the dates of their applications to align with passage of the Farm Bill. They may also amend the recitation of services to reflect the THC level. If the services relate to cultivation of production of hemp, the USPTO examiner will look for evidence that the applicant is authorize to produce hemp.