Cannabis Brand Protection

Cannabis Brand Protection

The United States Patent and Trademark Office (USPTO) refuses to register federal trademarks for cannabis businesses, even if the sale of cannabis or medical marijuana is legal in the state where the businesses are located, because federal trademark law only allows for the registration of trademarks associated with goods in “lawful” commerce under federal law. Cannabis is a Schedule I substance under the federal Controlled Substances Act thereby making the manufacture and sale of cannabis not “lawful” commerce. Although federal trademark registration would be the most appropriate means to protect your mark, if it were allowed by the USPTO, until the law changes there are still several ways to protect your brand. Note, we recommend you save all of the information that you would use to document a valid US trademark in case federal cannabis trademarks become legal at some point.

Unfair Competition Law. Unfair competition is a Florida common law cause of action pre-dates and works in concert with modern trademark law. Unfair competition law protects commercial goodwill, the value your brand has generated. Although unfair competition law is limited to state lines, and would likely be limited to the area in which your product actually sells, the cause of action becomes available once you start marketing and selling your product.

State Trademark Registrations. Florida issues Florida trademark registrations, which will provide a cause of action in the areas in which the state registration covers.

Federal Trademarks For Related Goods. The USPTO may not issue a trademark for cannabis goods, but it will allow you to trademark related, legally sold goods. In states in which cannabis has been legalized, related, legal goods like pipes (which can also be used for tobacco) can be trademarked. In medical cannabis states, the related legal goods become narrower, but are still a good route to claim some protection.

Federal and Common Law Copyrights. Copyright law is agnostic on whether the underlying content covers “lawful” goods. That is, if you copyrights will protect descriptions, fliers, websites, logos, packaging, and other creative works regardless of whether the content is cannabis. Although copyrights are not trademarks, and would likely not help you protect a business name, it can be an ideal tool to target the takedown of other websites and an add-on claim in litigation for similar logos, packaging, or fliers.

Plant Patents. If you have a patentably distinct cannabis varietal, you may be able to obtain a plant patent to prevent others from using your specific plant. In combination with the other protections above, you might be able to prevent competition from praying on your unique goods and services.

We are available to help. Contact us today for more information.