The Constitutional Court judgment which decriminalised the private use of cannabis has garnered significant attention in South Africa.

As predicted, the judgment has encouraged a number of existing and potential companies to create a brand for their business in order to grow and distribute cannabis in South Africa. Unfortunately, most of these businesses must delay their plans for their brand's trademark application – although possibly not for long.

This is because the Constitutional Court judgment has decriminalised only private cannabis use. Thus, the sale and distribution of cannabis is still illegal in South Africa.

The function of a trademark is clear. In short, a 'trademark' can be defined as a mark which represents the origin of the goods or services for the purpose of indicating that they are the goods of the proprietor of such a mark by virtue of the manufacture or dealing in such goods or services.

Since dealing in cannabis remains an offence, trademarks that are filed for cannabis and the cultivating and distribution thereof will be void and without commercial value, as they will not fulfil their main function as a badge of origin. Such a trademark application will also be contrary to law – which is a bar to trademark registration.

It is advisable to wait for the amended laws regarding cannabis to be finalised before conducting business and applying for a cannabis-based trademark in order to avoid wasted costs.

For further information please contact Jadon Wolmarans at KISCH IP by telephone (+27 11 324 3000) or email (jadonw@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

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