New Regulations for Cannabis-Based Products Take Effect
Up until this point, any business, particularly in states where recreational marijuana has been decriminalized, or where medical marijuana has been decriminalized and allowed, companies have tried to trademark their products with brand names — only to be refused outright by the USPTO. The Trademark Office is not allowed to grant a trademark for something that is a violation of federal law, even if it’s legal under local or state law.
Last year, the Farm Bill that was passed on December 20th legalized industrial hemp and goods derived from industrial hemp, with the caveat that they cannot contain any of the psychotropic agents that is associated with marijuana (THC) at greater than 0.3% on a dry weight basis. No longer is hemp considered the same as marijuana, and they are no longer controlled substances.
Interestingly enough, the original classification of marijuana as a Controlled Dangerous Substance (CDS) years ago, did not include hemp. Hemp was added later on. Now it’s been removed, and as long as the products that are being sold do not contain more than 0.3% THC, they are legal under the Controlled Substance Act and can be awarded trademarks.
It is likely that a number of the trademarks soon to be awarded to cannabis-derived products will have to do with cannabidiol or CBD. CBD is actually a class of 100 phytocannabinoids unique to the cannabis family, not including THC.
CBD derived from industrial hemp is now legal, however, one has to be careful that the product isn’t making any type of drug or nutritional supplement claims, or is combined with a nutritional supplement — because that would be a violation of the Food, Drug, and Cosmetic Act. Any purveyor of CBD has to walk a fine line in terms of explaining what their product is when they apply for a trademark. The good news is that this opens up trademarks for this whole burgeoning industry of medical marijuana, medical CBD, and CBD in general.
The other interesting thing is that this act was put into place on December 20th, meaning even if a company has been in business in states where marijuana has either been allowed for medical use or decriminalized, they cannot claim a prior use of the trademark before December 20th, 2018. So if there’s any possibility of likelihood of confusion between two applicants with their marks, one cannot claim that they were using it before the other, because everybody will have the earliest start date of December 20th, 2018.
This is pretty big news, both for the trademark community and for the medical marijuana and CBD community.
Patricia P. Werschulz
Werschulz Patent Law, LLC
23 North Avenue East
Cranford, NJ 07016