Seattle-based J. Michael Keyes reviews the TTAB's recent decision in In re Brown, in his pun-filled commentary entitled, "USPTO Snuffs Out Marijuana Dispensary Service Mark Application: Will All Others Go Up in Smoke, Too?" (106 Trademark Reporter 988 (September-October 2016). In Brown, the TTAB affirmed a refusal to register the mark HERBAL ACCESS for "retail store services featuring herbs," on the ground that the mark was being used in connection with the illegal sale of a substance (marijuana) in violation of the federal Controlled Substances Act (CSA).

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As In re Brown tells us, federal trademark protection is currently unavailable for those businesses seeking to protect trademarks and service marks that involve the sale of marijuana. Not all arguments in favor of registration are forever snuffed out, though. There may still be some daylight to challenge the underlying basis of the TTAB’s decision regarding the application of the Controlled Substance Act to applicants who are legally exercising their right to sell marijuana under state law