Patents and trademarks for cannabis?

Yes, why not?

More and more states are moving toward legalization of cannabis – both for medical purposes and recreational use. Since 2018, the majority of states that have allowed medical or recreational use of cannabis also allow the sale of cannabidiol (CBD) oil, which is one of the 104 chemical compounds found in the cannabis plant. This chemical compound is known to have some medical benefits, but is not psychoactive.

Nevertheless, marijuana remains illegal under the federal law. The Controlled Substances Act (CSA) defines “marijuana” as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin” (subject to certain exceptions). 21 U.S.C. §802(16). This poses a dilemma for cannabis dispensaries that seek intellectual property protection because trademarks require “use” in commerce, and such “use” is federally prohibited. However, it is possible to obtain a patent for cannabis, cannabis-related products, or CBD because the federal law does not require you to show “use” of the invention.

Recently, it became possible to obtain federal protection for trademarks, thanks to the passage and enactment of the 2018 Farm Bill. The 2018 Farm Bill removed “hemp” from the CSA’s definition of marijuana, subsequently removing cannabis plants and derivatives such as CBD that contain no more than 0.3% THC on a dry-weight basis from the controlled substances under the CSA.

Will the United States Patent and Trademark Office (USPTO) allow your trademark now? Yes and no. In its Examination Guide, the USPTO explained how it will examine marks for cannabis and cannabis-derived goods, like CBD. Because CBD is a chemical constituent of the cannabis plant that is encompassed within the CSA’s definition of marijuana, the USPTO will refuse a registration for a mark with goods/services encompassing CBD or other extracts of marijuana. Such use is still unlawful under the federal law and will not provide a valid “use” of the mark in commerce, as required by the law.

The USPTO will, however, allow some trademarks for “hemp,” but not all. Although “hemp” is no longer covered by the CSA since the passage of the 2018 Farm Bill, the applicants must still comply with Federal Food Drug and Cosmetic Act, for instance with foods or dietary supplements of a drug or substance undergoing clinical investigations.

Is there a difference between hemp, cannabis, and marijuana? Hemp, cannabis, and marijuana are all the same plant species, Cannabis sativa. Hemp is the plant species that is grown specifically for industrial use, from rope, to fabrics, to industrial materials; and marijuana is defined by the CSA (above).

Playing a guessing game with whether a CBD product qualifies as “hemp” is legally hazardous. One wrong move could result in a cannabis-based enterprise being shut down, landing your company in legal hot water with federal regulators. At the same time, entering the market without intellectual property protection could leave your business vulnerable to IP poaching, resulting in a loss of revenue.

It is not necessary to risk either outcome. Peacock Law has the knowledge and experience necessary to successfully navigate these rules. We can help your business to obtain the IP protection you need while remaining on the right side of the law.

Contact Peacock Law if you wish to trademark or patent cannabis or CBD goods/services.