Cannabis Trademark Services
Cannabis is still treated as a controlled substance and is illegal under the Controlled Substances Act (CSA), even though many states have individually legalized it under state laws. Therefore, trademarks for cannabis products cannot be federally registered with the USPTO. This poses a hurdle for individuals and businesses seeking to protect cannabis related brands and products from competitors using confusingly similar names. Our cannabis trademark lawyers have significant experience advising individuals and business owners on how to successfully navigate the hurdles of trademark registration in order to develop a brand that can be protected.
Cannabis Trademark FAQs
Can cannabis goods and services be trademarked?
No. Since cannabis is not yet legal on a federal level, the United States Patent and Trademark Office (USPTO) is not accepting trademark applications for goods or services relating to cannabis. However, the USPTO has issued trademarks for goods and services that are indirectly related to cannabis. Our cannabis trademark lawyers have created and implemented strategies to help you build your cannabis brand in preparation for when the USPTO accepts applications for cannabis-related goods and services. For example, if you are operating a business in a State where cannabis is legal, you should file a state trademark application for the cannabis related goods or services in order to establish a clear date of first use. Moreover, you can also register trademarks in goods and services that are tangentially related to cannabis which may prevent a competitor from using a confusingly similar name. Yet another strategy would be to create and register a cannabis-free product that is similar to the cannabis product with the hope that it will prevent a competitor from using a confusingly similar name. These are just a few strategies that Helbraun & Levey’s cannabis trademark attorneys have successfully implemented to help their clients.
Can CBD products be trademarked?
Yes. The USPTO will consider trademark applications for goods derived from hemp or cannabis plants and derivatives, that contain no more than 0.3% THC on a dry-weight basis. However, the CBD product cannot be ingestible. Any trademark application for goods that are marketed as foods, dietary supplements or nutritional supplements containing any amount of CBD will be refused registration by the USPTO. For example, trademark applications for goods such as CBD gummies, candies, drinks, or mints will not be accepted. On the other hand, CBD lotions, sunscreen, skincare products, lip balms, cosmetics and other topical applications that contain CBD and other cannabinoids can obtain federal trademark registration.
What trademark class is cannabis?
The USPTO classifies goods and services in 45 trademark classes. Since cannabis is not yet federally legal, the USPTO is not accepting trademark applications for goods or services relating to cannabis. As such, the USPTO has not yet created a class of goods for cannabis. However, the USPTO has granted trademark applications involving cannabis and cannabis-related goods and services in multiple trademark classes, including but not limited to: Class 1: fertilizer for cannabis and hemp markets; Class 3: body oils, soap, topical lotions, lipstick, eyeshadow, shampoo and conditioner; Class 4: candles; Class 5: CBD-infused beauty creams, cleaners, oils, masks, serums, and essential oils; Class 11: electric slow cooker for use in infusing oil; Class 16: packaging materials; Class 21: sealed container for household use for maintaining humidity levers in smoking materials; Class 22: bags specifically adapted for the extraction of herbs and essential oils; Class 34: cigarettes containing tobacco substitutes, hemp cigarettes composed of industrial hemp; electronic cigarette liquid used to refill cigarette cartridges containing cannabidiol (CBD); Class 35: online retail store services featuring subscription boxes containing hemp-based clothing, online retail store services featuring hemp-derived products; Class 39: passenger transport; Class 41: hookah lounge services; Class 43: bar and cocktail lounge services; and Class 44: farming services in the field of cannabis; providing a website featuring health information in the field of cannabis; massage therapy services involving the use and/or provision of products containing or serviced from cannabis.
Can you trademark a name for cannabis?
Since cannabis is not yet federally legal, the USPTO is not accepting trademark applications for goods or services directly relating to cannabis. However, the USPTO has granted trademarks to goods or services tangentially related to cannabis. Helbraun Levey’s trademark attorneys have significant experience working with client set up brands that will be situated to seamlessly sell cannabis goods or services when cannabis is federally registered.
What is USPTO’s stance on issuing cannabis trademarks?
Currently, the USPTO is not accepting trademark applications for goods or services relating to cannabis because cannabis is still considered illegal on a federal basis. On May 2, 2019, in the wake of the Agricultural Improvement Act of 2018 (known as the 2018 Farm Bill), the USPTO released Examination Guide 1-19, providing guidance on its review of trademark applications for cannabis and cannabis-related goods and services. Notably, the 2018 Farm Bill deleted “hemp” from the Controlled Substances Act’s (“CSA”) definition of marijuana. This created an opportunity for businesses to obtain trademarks for hemp-derived goods and services. As more states continue to legalize marijuana on a state level, the political pressure for federal legalization will continue to increase. It is only a matter of “when” not “if” cannabis is removed as a controlled substance, and when that happens, the USPTO will follow suite and permit the registration of trademark for cannabis related goods and services.
CONTACT US WITH YOUR CANNABIS TRADEMARK QUESTIONS
We understand that each business is unique, so now that you have the basics, give the Chair of our Trademark Group, Hamutal Lieberman, a call to discuss the details that pertain to you and your company.
