Canada legalized marijuana at the federal level in October 2018. Consequently, there are now publicly traded companies on their stock exchanges, and CEOs looking to brand and market their now legal products. In the United States, the push is also on. It is legal in ten states for recreational and medical purposes; 22 states for medical use, and in other states, possession of small amounts has been decriminalized (not legal, but somewhat tolerated). The 2018 Farm Bill in the United States also recognized hemp as a legal agricultural product. Cannabidiol (“CBD”), another cannabis related product, is also all the rage now–perhaps not as fun as THC, but maybe more useful, and is showing a lot of pharmacological promise. There are companies across the world, and now throughout North America ready to put these products in a bottle, a pill, a liquor, a gummy bear, pretty much in whatever, and brand and it and sell it to everybody.
Attitudes in this country may be changing about use of cannabis for recreational and medicinal purposes–but apparently not at the U.S. Trademark Office. If it smells of weed, that trademark application is probably getting rejected. On the federal level, marijuana is still illegal. And since you have to prove “use in interstate commerce” to get that federal trademark (15 USC §1051 and §1127), the office will typically reject anything that looks like illegal use under the federal Controlled Substances Act.
So, how do you brand it and protect it in the biggest market on earth if you can’t trademark it? You just have to get creative. Maybe the brand logo doesn’t need to be in the shape of a sativa leaf for starters. That tends to draw rejections, although leaves (such as in the image shown with this post) have been used in trademarks where the applicants successfully proved that the products in question did not violate the Controlled Substance Act or have illegal levels of THC. Or maybe the company has a related legal good or service that shares the brand. Or maybe the good or service just never leaves INTRAstate commerce, and qualifies for state trademarks. The times may be changing, but until they do, it’s important to stay flexible with portfolio strategy.
Article by John Buche, JD. firstname.lastname@example.org