If you’re in the cannabis industry, then you know that trademarks are important. They protect your brand and help to prevent others from using your intellectual property. In this blog post, we’ll give you some tips on how to get a trademark for your cannabis business. We’ll also talk about some of the best practices for trademarking in the cannabis industry. So, if you’re ready to learn more, keep reading!
Access to regulated cannabis and cannabis-derived products has increased exponentially over the last 10 years. At the moment, though, cannabis is still federally illegal under the controlled substances act. That’s why a brand strategy for cannabis businesses is a unique challenge.
You’ll find in this post the three things you should keep in mind while applying for trademark registration as a cannabis business.
The cannabis business is booming. Currently, 37 states, and three territories in Washington DC, regulate cannabis at least for medical use. Out of those, 18 states two territories, and Washington DC currently provide cannabis for adult use.
Recently states like New York and New Jersey issued new licenses for cannabis businesses. Nowadays, with an already clogged market, it is imperative that you establish a brand in the cannabis industry. It all starts with protecting your business’s assets, like its name, logo, domain name, and all other proprietary information.
Cannabis is a heavily regulated industry, far more regulated than alcohol and tobacco. That’s why you need an intellectual property attorney who understands all of these nuances. The United States Patent and Trademark Office and the courts allow for all marks registered that are lawfully used in commerce.
Now, what does lawfully using commerce really mean? Truly, it’s changed and evolved because the federal enforcement against cannabis has lessened and decreased exponentially over the last decade as well. With an increasing number of states, providing legal use of cannabis, the patchwork of state and federal regulation has provided unique business opportunities for cannabis-related businesses.
Three things to keep in mind when applying for trademark registration as a cannabis business
1. Your description of goods and services will make or break your application.
The more the description of your goods and services aligns itself to the clear sale of cannabis and cannabis-derived products, the less likely it is that the USPTO will allow your application to move forward.
2. Ancillary goods and services are your friends.
If you are offering goods and or services that clearly violate the controlled substances act, it is always a good idea to also offer goods and or services that fall outside the restrictions of the controlled substances act.
For example, a dispensary can also run an informational blog on cannabis and can register a trademark under the written cannabis materials.
3. Lastly, be bold. The cannabis regulation landscape is evolving.
A trademark lifecycle application with the right type of application can last up to three years or even more. It is an inexpensive way to position yourself when cannabis might not be regulated under the controlled substances act anymore. It’s a bet, but it’s an inexpensive bet.
Here are alternatives to trademark registration on the federal level
First off is state registration.
Yes, your state does have a trademark office. States that currently regulate the sale of cannabis and cannabis-derived products will gladly accept your trademark applications and it’ll help you be protected at least in one jurisdiction.
Next is to establish your common law rights.
Use your mark in association with the goods and or services that you’re providing. And the more jurisdictions you use that mark in, the more likely it is, you will be protected in that.
Another alternative is copyright registration.
Now, a copyright registration might not protect your brand’s name. It might not protect the slogan or even a phrase. But if your logo is an original work of authorship, it will protect that as original artwork and the benefits of copyright registration. Well, I’ve outlined those in another video 6 Reasons to Register Your Work With the Copyright Office
If you’re currently in or planning to enter the cannabis industry, and need the assistance of an intellectual property attorney who understands the nuances of federal and state restrictions around cannabis. Feel free to register for a discovery call in the comments below and as always.
Despite the challenges of trademarking cannabis products, it is still worth pursuing. The three key tips we’ve outlined should give you a good starting point for protecting your brand and product names. If you have more specific questions or want help filing a trademark application, please don’t hesitate to reach out to us for a consultation. We would be happy to walk you through the process and answer any questions you may have. Thanks for reading!
Are you currently in or planning to enter the cannabis industry, and need the assistance of an intellectual property attorney who understands the nuances of federal and state restrictions around cannabis? First step is to register for a Free Discovery Call. It’s a no-pressure way for us both to figure out if there is a potential match to work together and to get some of your questions answered.
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Sahil Malhotra is an Intellectual Property Attorney, who founded Drishti (“vision”) law because of his vision in protecting dreams and ideas.
He provided individuals and small businesses with an opportunity to enhance their IP’s value by helping them register trademarks and successfully argue against office actions. In addition to his training and experience, he has been deeply involved in the multifaceted IP portfolio at UIC and continues to be associated with IP organizations and conferences.
To know more about Sahil Malhotra — Click Here