Trademarks – Cannabis, Hemp and the Farm bill. The United States Patent and Trademark Office (USPTO) issued Examination Guide 1-19: Examination of Marks for Cannabis and Cannabis-Related Goods and Services After Enactment of the 2018 Farm Bill. The guide provided companies with the guidance needed when filing a hemp related trademark. The USPTO currently refuses to register any marks for goods and/or services that are in clear violation of federal law. To determine whether the commerce invoices cannabis or cannabis-related goods and services the USPTO looks at the Controlled Substance Act, 21 USC § 801 et seq, the federal Food Drug and Cosmetic Act, 21 USC § 301 et seq., to name a few.
The USPTO will not let trademarks with the drug class “Marihuana” (commonly referred to as marijuana) to be registered whether growing or not. Cannabidiol (CBD) additionally is a chemical constituent that still falls under the CSA’s definition of Marjuana. Therefore, the USPTO will also refuse trademarks that encompass CBD. However, since the 2018 Farm Bill, which was signed into law on December 20, 2018, changes the way federal authorities relate production and marketing of “Hemp.” Hemp is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” Section 297A.
The USPTO now allows Hemp related trademarks as long as the Applicant specifies that the products being sold contain less than 0.3% THC on a dry-weight basis. The Farm Bill can potentially remove the grounds for refusal on applications filed on or after December 20, 2018 for goods that are derived of cannabis or CBD, “but only if the goods are derived from ‘hemp.’” If there is more than 0.3% THC within the goods the application will still be refused.
For applications filed before December 20, 2018 the application will need to either request to amend their application to the filing date of the application to December 20, 2018 or elect to abandon the subject application and file a new applicaiton.
However, “registration of marks 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 introduced lawfully into interstate commerce. 21 U.S.C. §331(ll).” Id. https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm628988.htm
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