The legalization of cannabis in several states has prompted the growth and creation of many cannabis companies in recent years. In fact, the cannabis industry is expected to make $72 billion annually by 2030. With the industry becoming an increasingly competitive space, cannabis companies should protect their brand by obtaining trademarks. Trademarks range from a single word to a phrase or symbol and can make a cannabis company stand out from others in the market. However, trademarking cannabis products and services requires looking at both federal and state trademark laws and cannabis regulations.
Trademarking Cannabis Products Under Federal Law
Under federal law, the Controlled Substances Act (CSA) does not allow the distribution, dispensing or possession of cannabis. Although Congress attempted to pass the MORE Act of 2020 – which would have decriminalized cannabis and required cannabis companies to put specific labels on their products – the bill did not pass. Because the United States Patent and Trademark Office (USPTO) prohibits trademarking anything marked as illegal under federal law, cannabis companies cannot receive federal trademark protection for their cannabis products.
Trademarking Cannabis Products Under State Law
In March 2021, New York legalized adult recreational use of cannabis. As a result, New York cannabis businesses can file for state-level trademarks for their goods or services. All cannabis products sold in New York must have the New York state logo, THC signage, a symbol that the product is for those 21+, a health and safety warning and the level of THC in the product. There is also a requirement that the necessary label text be no smaller than a 6-point font.
Similarly to New York, California began allowing cannabis companies to file for trademarks with the California Secretary of State on January 1st, 2018. Cannabis companies in California applying for a trademark only have to prove that their trademark is lawfully used in commerce, meaning they legally sell their products or services. Further, the California Department of Cannabis Control requires that the goods or services provided by the cannabis companies are authorized under California law and fall under at least one of California’s trademark classification codes. A cannabis company applying for a trademark should also ensure they have proper local and state licenses for their products before applying for a trademark.
Finally, California cannabis companies applying for a trademark should comply with California’s cannabis product labeling and packaging requirements. Like New York, California has requirements related to child-resistant packaging for cannabis products.
Recommendations to Protect Your Cannabis Brand Under Current Law
Trademarking CBD Products
Despite the USPTO’s stance on trademarking cannabis products, there are still ways to protect your brand. First, Congress passed the 2018 Farm Bill, which legalizes and regulates the cultivation of hemp products. With the legalization of hemp products, the USPTO stated that cannabis companies could obtain federal trademarks for hemp-derived CBD products with a maximum of 0.3% THC.
Trademarking Legal Products Related to a Cannabis Brand
Though companies are currently unable to receive federal trademark protection for illegal cannabis products, they can receive protection for some legal cannabis-related goods or services, such as cannabis-themed clothing. Many companies have utilized this method to obtain some national brand protection.
Trademarking Within Your State
Cannabis companies desiring brand protection should consider filing for trademark protection in their state(s) of business if that state allows for cannabis goods or services to be trademarked. Though state-level trademarks do not offer such widespread protection as federal marks, it is still beneficial to your company’s brand to receive state-level protection. Cannabis companies should just be mindful of the varying state laws around trademarking cannabis products.
Conclusion
With the dramatic growth of the cannabis industry in the past decade, cannabis companies seeking state-level trademark protection will undoubtedly increase, and so could the potential for litigation. If you or your company has questions about protecting your cannabis brand, you should consult a qualified attorney. Intellectual property attorneys at Romano Law are here to help. Contact us to speak with a member of our team today!
