New Door for Cannabis Trademarks May Be About to Open
As we often point out in these pages, cannabis companies are unable to register trademarks for many of the core products. The United States Patent and Trademark Office (USPTO) “refuses to register marks for goods and/or services that show a clear violation of federal law, regardless of the legality of the activities under state law.” These goods include not only marijuana as defined by the Controlled Substances Act (CSA), but also many CBD products, such as edibles, which are prohibited under the Federal Food, Drug, and Cosmetic Act (FDCA).
Unsurprisingly, impacted companies have mounted numerous challenges to the existing framework. One such challenge comes from a company called Joy Tea, which had a trademark application (88640009) for CBD drinks rejected by the USPTO.
When it initially rejected Joy Tea’s application, the USPTO noted that “it is unlawful to introduce [into interstate commerce] food to which CBD, an ‘article that is approved as a new drug,’ has been added … regardless of whether the substances are hemp-derived.” The USPTO also noted that, as described, Joy Tea’s goods did not specify the CBD source, potentially covering goods defined as marijuana under the CSA (that is, containing more than 0.3% THC).