Cannabis Trademarks are Half-Baked at the USPTO

By: Ryan Grace

On Thursday, May 2, 2019, the United States Patent & Trademark Office issued new guidelines for cannabis-derived production, services and goods.  These new guidelines clarify the procedures for examining these types of trademarks.  The guidelines were instigated by the 2018 Farm Bill that exempts hemp from the definition of marijuana in the Controlled Substances Act (21 U.S.C.§ 801) (hereinafter “CSA”).  In the CSA, hemp is defined as a cannabis plant and derivatives, such as CBD, that contain no more than 0.3 percent THC on a dry-weight basis. 

Accordingly, the USPTO will consider registration for applications that indicate goods and/or related services that encompass CBD or cannabis if the following conditions are met:

A.       The goods and/or related services are hemp derived.

B.       The description of the goods and/or services specifically indicate that there is less than 0.3 percent THC in the hemp products.

C.       The application was filed on or after December 20, 2018.  If the application was filed before December 20, 2018, the applicant can change the filing basis and filing date of the application to circumvent the CSA as a ground for refusing the application.

Although trademark applications for hemp-derived CBD goods will be considered for registration, the playing field for the marijuana industry, as a whole, is half-baked, because applicants will need to specify in their applications that the CBD used in their respective products consists of no more than 0.3 percent THC.