Protecting Cannabis Trademarks in the United States
Protecting Cannabis Trademarks in the United States
In the United States, the consumption and sale of cannabis are federally prohibited under the Controlled Substances Act (CSA). However, state governments possess the authority to enact and enforce laws and regulations that benefit their jurisdictions’ health, safety, and welfare. This authority is known as the "police power" of the states. Notably, some states have used their police power to legalize the recreational or medicinal use and regulated sale of cannabis within their borders.
So, Where Does Trademark Protection Stand for Cannabis Entrepreneurs?
The United States Patent and Trademark Office (USPTO) does not allow the registration of federal trademarks for goods or services related to the sale and consumption of cannabis. One of the requirements for federal trademark protection is the lawful use of the mark in interstate commerce. Given the federal prohibition under the CSA, this requirement of legality is not met.
However, cannabis businesses can protect legal goods to obtain some form of federal protection. For instance, products intended for tobacco consumption can be federally registered.
The issue of protecting cannabis paraphernalia was addressed in the case of In re National Concessions Group, Inc., TTAB Ex Parte Appeal No. 87168058. In this precedent, the Trademark Trial and Appeal Board (TTAB) upheld the USPTO's decision to apply the CSA to reject the trademark registration for cannabis paraphernalia. Even though the registration application did not explicitly claim protection for cannabis-related products, the products were primarily intended for use with cannabis. As a result, the USPTO's scrutiny of such applications has become more stringent.
State-Level Trademark Protection
Despite federal restrictions, trademark protection at the state level exists in the United States. In states where the sale and consumption of cannabis are legal, trademarks can be registered. While state-level protection is more limited than federal protection, state trademarks for cannabis can be an excellent way to combat local competition and infringement within the industry.
Conclusion
Navigating the complexities of trademark protection in the cannabis industry requires understanding both federal restrictions and state-level opportunities. By leveraging state trademark registrations and seeking protection for legal goods, cannabis entrepreneurs can safeguard their brands and compete effectively in this evolving market.
