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You Can’t get a Federally Registered Trademark for Weed

With so many states making marijuana legal, cannabis entrepreneurs, like any other businesspersons, may want to protect their good will and brand identity by obtaining the protection of federal trademark registration.  For the moment, alas, they are out of luck.  In order to qualify for federal trademark registration, the trademark must be used on the goods identified in the trademark application in interstate commerce. The Trademark Act’s requirement of ‘use in commerce,’ means a ‘lawful use in commerce.  In re Pepcom Indus., Inc., 192 USPQ 400, 401 (TTAB 1976); TMEP §907.

Weed May Be Legal In Your State

Although pot, Mary Jane, marijuana, or whatever moniker you prefer, may be legal under the laws of various states, it is still absolutely illegal under federal law pursuant to the Controlled Substances Act (“CSA”), 21 U.S.C. §§801-971, and the United States Patent and Trademark Office (USPTO), the government agency responsible for registering trademarks, does not concern itself with state law.  The use of the trademark must comply with federal law.  As noted in the Trademark Manual of Examining Procedure (TMEP):

Manufacture, Distribute or Dispense Laws

“[T]he CSA makes it unlawful to manufacture, distribute, or dispense a controlled substance; possess a Schedule I controlled substance; or sell, offer for sale, or use any facility of interstate commerce to transport drug paraphernalia. See 21 U.S.C. §§  812(b)(1)(B), 841(a)(1), 844(a), 863.  Note that, regardless of state law, marijuana, marijuana extracts, and the psychoactive component THC remain Schedule I controlled substances under federal law and are subject to the CSA’s prohibitions.”  Thus, trademarks identifying a marijuana product cannot meet the “lawful use in commerce” standard, even for medical marijuana.  Accordingly, for the time being, pot entrepreneurs are flat out of luck as far as federal trademark registration is concerned.  An alternative strategy may be to explore the possibility of trademark registration at the individual state level.

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About Thomas Wilentz, Trademark Lawyer

Thomas M. Wilentz is a published writer on intellectual property law who has been practicing trademark law for 18 years. His firm, Thomas M. Wilentz Attorney at Law, PLLC, was founded in 2003 and since then has helped clients from all over the USA, as well as from Canada, China, the UK, Australia, Malaysia, Mexico, Singapore and many other countries.