Conflicts between state and federal moral agendas aside, the expanding legalization of marijuana presents fascinating intellectual property (“IP”) problems.
The Law Office of David H. Faux, P.C. already has IP clients in Colorado and Oregon, handling the trademarks, trade secrets, and copyrights surrounding various brands. With marijuana enjoying legalization in several states already, it is important to keep an eye on both opportunities and risks within this nascent industry.
When developing new cannabis-based goods, keep in mind that federal trademark registration remains very, very limited so long as marijuana remains illegal at the national level. Very briefly, you can still obtain state-level and common-law trademark protection for, as an example, a strain of marijuana or associated paraphernalia.
If you sell a variety of edible goods, then you might trademark the specific name for, e.g., a brownie that does not contain any cannabis. But “clever” approaches, such as referring to marijuana as “dried goods” or “agricultural goods,” will simply not work. Even cannabis-based products that might otherwise be allowed to cross state lines will not be registrable with the US Trademark Office, though you may be able to register in multiple states.
You could also trademark the name of your business if you are selling non-cannabis goods such as apparel or certain accessories. A good example is SMELLY PROOF plastic bags. Sold in head shops throughout the country, nobody has any delusion about the concerns of SMELLY PROOF’s targeted consumer. Yet, the mark is registered only for “plastic bags for packaging.” Without mention of marijuana or any other illegal substance such a trademark is stress-free.
Because of these legal quirks, protecting marijuana-based brands can be surprisingly nuanced. Please contact me firstname.lastname@example.org with any and all questions.