Can you Trademark Your Cannabis Business?
By Katherine Saab
That’s a huge question; can you trademark your cannabis business brand, logo and product?
Technically, from the Federal level, which is the registering branch of government for trademarks, you cannot register a trademark for an illegal product, substance or service.
Obviously, cannabis is illegal on a federal level, therefore; ‘what’s a cannabiz owner to do?’
The first thing to understand is that you cannot attach a logo, slogan or any form of branding to the actual plant and commerce of the plant. The trademark can be attached to any ancillary product such as cannabis t-shirts, hats, or other types of secondary products. In addition you can trademark logos and branding for cannabis information services, an avenue to consider.
As of this writing, January 2018, it seems that there are only a few strategies that might facilitate acceptance of a Federal trademark application.
1. Trademark ancillary products and services
Todd Winter, a Costa Mesa CA. attorney for cannabis companies expressed it like this, “ I call it the ‘circle your wagons’ approach. We get everything trademarked that can be tangential to the actual cannabis product itself.”
In this scenario the products trademarked must be actually sold. It is through ‘use’ that the trademark remains registered. Cannabis trademark attorney, Alison Malsbury stated, “ The United States Patent and Trademark Office (USPTO) is looking for more than just token sales. If you are not continually using the trademark it can be canceled and you can lose everything.” (LA Times)
2. Information Services
If you provide information, news or articles related to medical marijuana you could register your trademark with respect to that service in your application. You are not including in your mark any commerce with respect to the actual sale and distribution of the plant itself.
Information services are naturally a part of any business in the cannabis industry. This is an industry of pioneers and the approach to your cannabis business, in terms of longevity, is to consistently provide up to date information and developments to your clients.
3. Trademarking CBD Products
This might be the most viable approach for those businesses that are primarily in the distribution and wholesale/retail commerce of the plant product itself. As of this writing, the Federal position on CBD, the non-psychoactive component of cannabis is fundamentally legal. This is for hemp based CBD that does not contain more than 0.3% THC, which means it is not psychoactive. For those business that have a CBD product or products and they trademark those products, the possibility for moving the trademark to other cannabis products, as the legal climate morphs and changes, become greater.
4. State Trademark Protection
Another option that has benefits, though not as comprehensive as a Federal registration, is a state trademark registration.
If you register your trademark with the state in which you do business, you will have the benefit of protection within that jurisdiction. You could also have the option of obtaining state trademarks within all states that you are doing business.
Although that might appear to be a cumbersome process it at lease affords you protection of your brand within the states that you are actually doing business.
* At this point I would like to insert this disclaimer: If you have followed this article to this point, it should become clear that the best approach for your path forward in trademarking your cannabis business would be to hire an attorney that specializes in trademarking in the cannabis industry.
The information provided here is solely to provide a fundamental platform for your own due diligence.
As we enter this ‘High Powered’ era of the cannabis industry it is necessary to remain flexible and informed. It seems that we will be operating in a continued hostile Federal atmosphere that is both volatile and adamantly in opposition to the ‘will of the people’. It is only a matter of time until the people’s will and the majority of states laws will have their way. Until then, we just stay alert, innovative and steadfast.
We’ve got this!