On May 2, 2019, the United States Patent and Trademark Office issued an examination guide in an effort to clarify the procedure for examining marks for cannabis and cannabis-derived goods and related services following the 2018 Farm Bill.
The 2018 Farm Bill, formally known as the Agricultural Improvement Act of 2018, removed industrial hemp from the Controlled Substances Act’s definition of marijuana and permits the cultivation of industrial hemp (with the requisite permits and licenses) so long as such plants contain no more than 0.3% delta-9 tetrahydrocannabinol (“THC”) concentration on a dry weight basis. This means that hemp and hemp-derived cannabidiol (CBD) products are no longer controlled substances under the CSA. However, among other restrictions, the 2018 Farm Bill expressly preserved the Food and Drug Administration’s (“FDA”) authority to regulate and provide guidelines for the use of cannabis and cannabis-derived (i.e., CBD) products in food and dietary supplements under the Food Drug and Cosmetic Act (“FDCA”). Under the FDCA, it remains unlawful to use CBD in foods or dietary supplements without approval from the FDA because CBD is an active ingredient in FDA-approved drugs and is undergoing clinical investigations.
In light of the intersections between the CSA, the Farm Bill (AIA), and the FDCA, the USPTO’s examination guide is a welcomed bit of clarification on how the office will proceed with what we understand to be a backlog of cannabis-related trademark applications.
Historically, the USPTO has rejected applications for registration of cannabis or cannabis derived-CBD goods and services, including both marijuana and hemp. Now that hemp has been removed from the CSA, the USPTO will begin accepting hemp-related marks. For applications filed on or after December 20, 2018, the application must specify that the goods identified contain less than .3% THC on a dry weight basis. Similarly, for service-related marks, the application must specify that services involve hemp containing .3% or less THC. For applications filed before December 20, 2018, applicants will be permitted to either amend the filing date or abandon the application and file a new application.
Given that marijuana and its derivatives are still controlled substances, any applications for marks for marijuana or marijuana derived-CBD goods or services involving marijuana-related activities will continue to be rejected as unlawful under federal law. This includes marks used in commerce in states which have legalized medical and adult-use marijuana. Further, even if your desired mark is hemp-related, it may still be rejected by the USPTO, if the related goods violate the FDCA.
As with many areas related to this industry, protecting your intellectual property continues to be a complex and evolving process.