Patent and Trademark Issues

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Trademark practitioners, hemp producers, and hemp-derived product manufacturers have long struggled with the clash of federal and state law regarding protection of trademarks with the United States Patent and Trademark Office (USPTO). Historically, the USPTO has refused registration of marks that include cannabis, hemp, CBD or derived products on the basis that these marks were unable to have lawful use in commerce under existing federal law. These waters became even murkier after the passage of the Agricultural Improvement Act of 2018 (known as the 2018 Farm Bill), which removed “hemp” from the list of controlled substances under the Controlled Substances Act (CSA). On May 2, 2019, the USPTO issued Examination Guide 1-19, outlining the USPTO’s policies with respect to trademarks including legal CBD and hemp-derived goods and services since passage of the 2018 Farm Bill. This appears to open the door for registration of marks that include legal CBD, hemp or hemp-derived products (such as hemp oil), or services such as the cultivation or production of hemp.

Chapter 1 – The Double-Edged Nature of the FDA Approval Process

2018 proved to be a very busy (and frankly dizzying) year for the cannabis industry as three more states, including Missouri, passed laws legalizing some form of cannabis use, bringing the total number of such states and U.S. territories to well over thirty, despite the fact that cannabis, and its use, remains unlawful, under federal law that is. Today, there are thirty-three states that allow for medical use of cannabis, while ten states have legalized the recreational use of cannabis.  What is more, several state governments and governors are expected to prioritize new cannabis-related policies in 2019. As more states decide to permit various uses of cannabis, one issue that remains generally unanswered lies at the intersection of these emerging state laws and U.S. patent law, which falls within the exclusive purview of the federal government, both statutorily and in enforcement of patent rights.

Yesterday, Laura A. Labeots, Ph.D., J.D., posted an update on the significant changes to the Agricultural Improvement Act of 2018 on our Food & Agribusiness blog.

What does this post mean for the cannabis industry?

Since much of cannabis is asexually produced, it appears that marijuana and industrial hemp cultivators can utilize the Plant…

The United States Patent and Trademark Office (“USPTO”) is at odds with the ever-growing marijuana industry. While marijuana legalization was a big winner in November’s elections, with seven states legalizing either medical or adult recreational use of the drug, the burgeoning industry may run into some problems obtaining trademarks for marijuana products and related devices. The lack of trademark protection could slow down or inhibit the growth of the industry as the lack of trademark protection limits entrepreneurs’ ability to stop infringement and protect their rights.

On August 12, 2016, the DEA published a policy in the federal register (81 Fed. Reg. 53846) designed to increase the number of entities registered under the CSA to grow marijuana to supply legitimate researchers in the United States.  The DEA has concluded that the best way to satisfy the current researcher demand for…

A favorable ruling from the Ninth Circuit in United States v. McIntosh is a reassuring win for the medical marijuana industry.  This federal case concluded that § 542 of the Consolidated Appropriations Act prohibits DOJ from spending money on actions that prevent medical marijuana states giving practical effect to their state laws that authorize…

On June 10, 2016, Governor Hickenlooper signed bill 16-040 which removes the Colorado two year residency requirement to obtain a marijuana business owner license, ultimately easing the burden for prospective out-of-state investors to become owners. The Colorado General Assembly’s intent in creating this bill was to provide marijuana businesses with the economic capabilities to grow…

President Obama approved the 2016 federal budget and it contained a prohibition that none of the funds made available to the Department of Justice may be used, with respect to any of the States that have state-legal medical marijuana programs, to prevent any of them from implementing their own laws that authorize the use, distribution,…

This ruling is a definitive win for medical marijuana business that are operating consistent with state regulations.  The Rohrabacher-Farr amendment to last year’s spending bill lists the states that have medical marijuana laws, and mandates that the DOJ is barred from using federal funds to “prevent such State from implementing their own State laws…