May 8, 2019
To date, the United States Patent and Trademark Office (“PTO”) has refused registration for cannabis and derivative products on the basis that such goods were unlawful for use under federal law. The passage of the Farm Bill, on December 20, 2018, removed hemp from the Controlled Substances List and gave states the power to regulate the production and sale of hemp within their respective borders. Hemp has been redefined as “the plant Cannabis Sativa L. and any part of the plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” This new definition allows cannabidiol (“CBD”) containing less than 0.3 percent of THC to be sold in states that permit it and shipped across state lines.
The passage of the Farm Bill was heralded as a bipartisan achievement that would provide economic growth for CBD and hemp-related businesses. In reality, the launch of legalized CBD has stumbled out of the gates and left many business owners scratching their respective heads when trying to determine how they can operate in accordance with sometimes conflicting federal and state regulations. One area that has created some confusion is the examination of CBD trademark applications. On May 2, 2019, the PTO released Examination Guide 1-19 to address how the PTO prospectively will evaluate trademark applications for cannabis and cannabis-related goods and services.
How will the PTO consider cannabis and cannabis-related trademark applications?