By Justin McNaughton, Senior Counsel
The U.S. Patent and Trademark Office (“USPTO”) continues to wrangle with cannabis trademarks. On May 2, 2019, it issued new guidance for examiners on how to handle them. Arguably, the USPTO’s new guidance is the most complicated guidance ever issued from that office for a particular product category. The complete guidance is posted on the USPTO website.
With passage of the 2018 Farm Bill, Hemp was removed from the Controlled Substances Act (“CSA”). Previously the USPTO could hide behind the CSA and simply refuse to register anything derived from Cannabis sativa L. Now, the USPTO finds itself wading into the nuances of hemp vs. marijuana because it must allow trademarks for now legalized products and services.
Here are the basic cannabis trademark rules the USPTO established in its recent guidance:
- Marijuana is still prohibited from U.S. trademark registration
- Trademark applications for hemp products must have an effective filing date of after December 20, 2018, but they’ll allow you to push your effective filing date back.
- Trademark applications for CBD products must state that they are derived from hemp.
- Trademark applications for CBD products must also state that the products contain less than .3% THC.
- Trademark applications for CBD products will still be refused for anything governed by the Federal Food Drug and Cosmetic Act (“FDCA”), namely, foods, beverages, dietary supplements, and pet treats containing CBD regardless of the CBD source unless approved by the FDA – but the FDA has not issued new guidance.
- Trademark applications for hemp cultivation/production, will require evidence of licensure according to a USDA-approved plan – but the USDA has not issued new guidance.
So what does it really mean?
- The USPTO appears to be allowing hemp trademarks for textiles and topicals.
- The USPTO will not allow trademarks for dietary supplements or edibles.
- The USPTO will not allow trademarks on anything containing more than .3% THC or any cannabis product that was not derived from hemp.
- It is unclear whether the USPTO will allow trademarks on hemp production yet.