A federal trademark registration is meant to protect both businesses and consumers, allowing businesses a monopoly on words and graphics to identify their products while encouraging consumers to rely on those words and graphics when determining the safety and quality of a product. However, even in the face of a growing list of states legalizing marijuana, the federal government remains terrorized by reefer madness, obstructing businesses and consumers alike in the realm of trademark.
Like heroin, crack, and crystal meth, marijuana is classified as a Schedule I drug under federal law. These are drugs considered to have a high potential for abuse and the potential to create severe psychological and/or physical dependence (excluding alcohol and tobacco). You can’t smoke it, you can’t sell it, and you CANNOT trademark any business brand involving goods or services primarily used for it.
For a federal trademark registration to be issued, the trademark must be “in use in commerce.” “Commerce” is defined as “can be regulated by Congress.” Congress only regulates interstate trade, goods, and services sold across state lines. Therefore, Congress regulates federal registrations, and that means the trademark must be lawfully used under federal law, which still criminalizes marijuana.
For example, in In re AgrotecHemp Corp. the applicant was trying to register PUREXXXCBD for “Plant extracts for pharmaceutical purposes; vitamins; dietary supplements; all of the foregoing containing CBD solely derived from hemp containing no more than .3% THC on a dry weight basis.” Using CBD requires approval from the Food & Drug Administration, which the applicant did not have. Registration refused.
In another recent Trademark Trial and Appeal Board decision, the tension between federal and state law is addressed more explicitly. In In re National Concessions Group Inc., the applicants tried to file BAKKED for “Essential oil dispenser, sold empty, for domestic use.” Registration was denied because essential oil dispensers are considered drug paraphernalia. The applicant appealed with a couple of main arguments.
The first argument was that an essential oil dispenser wasn’t necessarily for drugs but could also be used for tobacco. The government’s Examining Attorney made quick work of this defense, using the applicant’s own website and social media espousing the dispenser as perfect for “dabbing” – a means of inhaling cannabis concentrate to produce a quicker high than traditional smoking. According to federal law, sale of the dispenser was illegal as promoted in the applicant’s own marketing materials.
The applicant also argued, in the alternative, that its manufacture and sale of the dispenser came under an exemption as authorized by state law, specifically Colorado, where marijuana is legal. The TTAB, however, stated that the exemption for authorization under state law doesn’t apply to trademark registration because the applicant sought to assert its trademark across state lines, including states where marijuana remains illegal.
Hence, the federal government remains terrified of the dinkie dow, obstructing legitimate businesses from protecting their brands, even though a well-established brand can also serve the consumer. With registration refused at the federal level, the applicant can still file a state-level trademark in all the states where marijuana is legal.
