Following up on the May 10, 2019, MVS Filewrapper post “Big Changes Ahead for Plant Variety Protection (PVP)”, the United States Patent & Trademark Office (USPTO) has also recently issued some guidance on how the 2018 Farm Bill affect trademark applications for cannabis and CBD products. Per the guidelines issued May 2, 2019, the USPTO will now approve some cannabis/CBD applications, but with a few significant caveats:

  1. Applications filed on or after December 20, 2018 for Non-Food/Beverage/Dietary Supplement/Pet Treat Products

For Non Food/Beverage/Dietary Supplement/Pet Treat Products trademark applications filed on or after December 20, 2018, to the extent the cannabis or CBD goods identified contain no more than 0.3% THC on a dry-weight basis, the use is now legal under U.S. law, and the trademark can be registered by USPTO.

2. Applications filed before December 20, 2018 for Non-Food/Beverage/Dietary Supplement/Pet Treat Products

For trademark applications filed before December 20, 2018 to the extent they identify goods encompassing CBD or other cannabis products, registration will be still be refused because such applications did not have a valid basis to support registration at the time of filing because the goods violated federal law, and thus there could be no bona fide intent to lawfully use in the U.S. However, the examiners are instructed to advise applicants they may request to amend filing dates to December 20, 2018 (and thereafter a new search will be conducted for conflicting marks).

3. Applications for Food/Beverage/Dietary Supplement/Pet Treat Products

The 2018 Farm Bill explicitly preserved U.S. Food and Drug Administration’s (FDA) authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food Drug and Cosmetic Act (FDCA). To date, the FDA has made no changes, and thus CBD remained identified as an active ingredient in FDA-approved drugs and is a substance undergoing clinical investigations. Registration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful even under the new Farm Bill as such goods may not be introduced lawfully into interstate commerce.

This change will help some applicants to obtain trademark registration for their marks associated with cannabis/CBD -related goods and services, but applicants should carefully consider how the USPTO and FDCA requirements will affect their trademark rights before applying for trademark registration.