Last week, the U.S. Patent and Trademark Office (USPTO) issued a memo concerning CBD products. The memo, titled Examination of Marks for Cannabis and Cannabis-Related Goods and Services and Enactment of the 2018 Farm Bill provides insight into how the trademark office will treat such applications.
The memo, which can be read in full here, begins by addressing the preliminary issue, which is that goods or services seeking registration with the USPTO must comply with federal law, regardless of the legality of the activities under state law. The memo identifies the federal laws that the products or services must comply with.
The memo continues to focus on this point, stating in the body of the memo “the USPTO refuses registration when an application identifies goods encompassing CBD or other extracts of marijuana because such goods are unlawful under federal law and do not support valid use of the applied-for mark in commerce.” Under federal law, cannabis is illegal.
It seems that applications filed on or after December 20, 2018, which are impacted by the 2018 Farm Bill, may be treated slightly different. The memo states, “For applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the [Controlled Substances Act] as a ground for refusal of registration, but only if the goods are derived from ‘hemp.’ Cannabis and CBD derived from marijuana (i.e., Cannabis sativa L. with more than 0.3% THC on a dry-weight basis) still violate federal law, and applications encompassing such goods will be refused registration regardless of the filing date.”
In addition, the memo discusses that the 2018 Farm Bill does not make all CBD or hemp-derived products lawful. It states, “Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act.”
Applicants who filed before December 20, 2018 and that identified goods encompassing CBD or other cannabis products, the USPTO can reject their registration due to the lawful use or lack of bonafide intent to use in lawful commerce under the Controlled Substances Act.
The memo further indicates,
“Because of the new legal definition of “hemp” under the 2018 Farm Bill, the applicant will also be required to amend the identification of goods to specify that the CBD or cannabis products contain less than 0.3% THC. If the applicant elects to amend the application, the examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03. The examining attorney will also advise the applicant that, in lieu of amending the application, it may elect to abandon the subject application and file a new application. Alternatively, the applicant may respond to the stated refusal by submitting evidence and arguments against the refusal.”
All information is for general informational and educational purposes only. Nothing should be interpreted as legal or wellness advice.