Marijuana Businesses have found it troubling to file for trademark due to its federally illegal status. The answer to whether you can achieve federal trademark protection for your cannabis-based brand depends on how close you are tied to the marijuana product itself under federal trademark law and whether it is legal to use in commerce under federal law.
The Controlled Substances Act (CSA) currently prohibits manufacturing, distributing, dispensing, or possessing certain controlled substances, including marijuana and marijuana-based preparations as well “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful…” which includes drug paraphernalia in interstate commerce so in addition to the cannabis product itself no pipes, bongs or vaporizers.
There have been federal trademarks granted for some ancillary products related to the manufacture or dispensing of marijuana. For example, federal trademarks have been granted for a marijuana clothing company, a web journal related to health and wellness issues surrounding marijuana and even a medical marijuana referral service because none violate the CSA standards discussed above.
The United States Patent and Trademark Office (USPTO) has rejected trademark applications for marijuana strains and related marijuana paraphernalia. As a “boots and suspenders” approach to brand protection some marijuana companies that also offer goods or services that do not violate the CSA are registering their marks in eligible classes for goods and services or achieving some protection for their brands and in anticipation of the day when federal trademark registration may be permitted.
Some states allow for the registration of state trademarks and which do not carry the restrictions of the CSA and are often good options for achieving a measure of protection for your marijuana brands and if federal law changes would potentially have a leg up in achieving a federal registration in the future.