Cannabis Trademarks and Other IP Considerations

In a recent Ninth Circuit Court decision, the court affirmed that delta-8 THC products are legal and ripe for trademark protection. The decision opens a new frontier for companies in the cannabis space, who can now apply to protect their branding federally.

The court looked to a 2018 Farm Bill that categorized legal “hemp” any cannabis-derived products containing less than 0.3% THC, the psychoactive compound in marijuana. This ruling suggests that trademarks applicants can now apply to protect their cannabis brands involving synthetic forms of THC. Applicants will, however, face challenges at the United States Patent and Trademark Office (USPTO) as they push against a web of regulations before approval of delta-8 trademarks.

Trademark Protection for Cannabis Companies

Previously, a number of individual states offered geographically limited trademark registrations to local cannabis companies. States such as Colorado and Washington State legalized cannabis and allowed registration of cannabis trademarks on the state level. State trademark registration protection is narrow and differs from USPTO trademark registration, which offers broad, federal protection. Until the recent Ninth Circuit decision, USPTO trademark registration for cannabis companies to sell cannabis-derived products was challenging and largely refused.  

Often brands looking to trademark their cannabis products opted to register the relevant marks with only states that permit the sale of cannabis. While the USPTO has been reluctant in the past to offer trademark protection to Cannabis companies, some cannabis companies secured federal trademark rights to sell ancillary goods and services, such as food products, skin care, electronics, clothing, or shoes.

InTELLECTUAL PROPERTY Portfolio

The Ninth Circuit case suggests that Cannabis companies should now aim to register, maintain, and protect their intellectual property rights, including trademarks, copyrights, and patents, as well as establish internal systems and agreements to secure proprietary information and trade secrets. While a trademark protects a cannabis company’s branding, a copyright will allow companies to protect their artwork and written publications, and patents may potentially help them secure rights to new methods of extraction of materials from cannabis plans. As laws are changing on the state and federal level, cannabis company owners should consider registering, maintaining, and protecting their intellectual property portfolios. Cannabis companies should consult with an intellectual property lawyer to conduct an intellectual property audit of their company.

For more information about this or other trademark laws, contact the Antares Law Firm.

This blog post has been prepared for informational and educational purposes only and does not constitute legal advice.