By Joseph Englander
Certain cannabis related trademarks are now registrable at the US Patent and Trademark Office (USPTO) under new Examination Guidelines (attached), because they are legal after passage of the 2018 Farm Bill.
Under the 2018 Farm Bill, cannabis plants and derivatives such as CBD that contain no more than 0.3% THC on a dry-weight basis are no longer controlled substances under the Controlled Substances Act (CSA).
Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act (FDCA). 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.
The trademark applications of many growers, manufacturers and distributors were rejected previously, but now may either apply for registration, or amend previously rejected applications. A USPTO Trademark Registration is a valuable corporate asset as well as a means for fighting counterfeiters.
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