To date, the United States Patent and Trademark Office (“PTO”) has refused registration for cannabis and derivative products on the basis that such goods were unlawful for use under federal law. The passage of the Farm Bill, on December 20, 2018, removed hemp from the Controlled Substances List and gave states the power to regulate the production and sale of hemp within their respective borders. Hemp has been redefined as “the plant Cannabis Sativa L. and any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” This new definition allows cannabidiol (“CBD”) containing less than 0.3 percent of THC to be sold in states that permit it and shipped across state lines.
The passage of the Farm Bill was heralded as a bipartisan achievement that would provide economic growth for CBD and hemp-related businesses. In reality, the launch of legalized CBD has stumbled out of the gates and left many business owners scratching their respective heads when trying to determine how they can operate in accordance with sometimes conflicting federal and state regulations. One area that has created some confusion is the examination of CBD trademark applications. On May 2, 2019, the PTO released Examination Guide 1-19 to address how the PTO prospectively will evaluate trademark applications for cannabis and cannabis-related goods and services.
How will the PTO consider cannabis and cannabis-related trademark applications?
Federal Restrictions on CBD Trademark Applications
Now that the Farm Bill has defined what legal hemp and hemp-derived CBD products are, the PTO will no longer refuse applications for CBD-related marks applied for on or after December 20, 2018, as long as the goods and services otherwise comply with federal regulations. However, the PTO will initially refuse registration for CBD-related trademark applications that were submitted before December 20, 2018. Applicants who had submitted applications prior to December 20, 2018, will be allowed to, among other options, amend the filing date of their respective applications to on or after December 20, 2018 or abandon their applications.
In addition to complying with the regulations contained in the Farm Bill, applicants must also comply with federal guidelines established under the Federal Food Drug and Cosmetic Act (“FDCA”). The Food and Drug Administration (“FDA”) has the authority to regulate the use of CBD when CBD is used as an additive to foods, beverages, dietary supplements, or pet treats. Currently, CBD edible products and dietary supplements will be refused trademark registration on the basis that they violate the FDCA.
Seek Advice Before Applying for a CBD Trademark
Although trademark applications for hemp-derived CBD goods will be considered for registration, applicants will need to specify in their applications that the CBD used in their respective products consists of no more than 0.3 percent THC on a dry weight basis. Given the rapidly changing nature of this area of trademark law, it is wise to consult with a seasoned trademark attorney so that delays can be avoided in the application process.