Maximize Your Cannabusiness Success: Secure Trademark Rights By Dec. 20, 2023

December 20, 2023 is the fifth anniversary of the 2018 Farm Bill, which legalized hemp in the United States. It is an important date for cannabusiness trademark owners that wish to maintain and enhance these critical assets and for those looking to establish new trademarks. 

Customers distinguish your cannabusiness by using your unique brand names, logos and trademarks to identify you as their desired source of high-quality goods and services. The federal illegality of cannabis flower, extracts, and derivative goods has caused many businesses to undervalue their vital trademarks, primarily because it is widely believed that such assets are not registrable or enforceable. Rest assured, however, that federal trademark registrations can be obtained for eligible marks that are used with non-cannabis goods and services associated with the industry as long as they do not conflict with earlier similar trademark uses by your competitors.

The United States Patent and Trademark Office (USPTO) issues registrations for trademarks used with the following: apparel, batteries, retail, consulting, and education services, grinders, grow systems, lighting, packaging, pipes, rolling papers, topical skin products, vape pens, watering, and much more. It is imperative for all businesses to consider the strategic federal registration of their trademarks, which are equity business assets that can increase in value and be licensed or sold to others. Bear in mind that federal registration confers a nationwide presumption of trademark ownership, which is vastly more valuable than state registrations which are bound by state borders and are difficult to protect and enforce. Accordingly, failure to pursue federal registrations could hinder your chances to claim exclusive ownership of your brands over the competition, both now with respect to federally legal goods and services, as well as currently outlawed cannabis goods that may eventually be federally legal.

For example, the 2018 Farm Bill authorized the production of hemp and removed hemp and hemp seeds from the DEA’s schedule of controlled substances. This authorized the federal registration of trademarks used with goods comprising Cannabis sativa L. with a delta-9 THC concentration of not more than 0.3% on a dry weight basis. It would be prudent for cannabusinesses to register their marks with the myriad non-cannabis goods and services described above and pursue registration with relevant hemp goods so long as the psychoactive THC component of the goods is limited in accordance with the law. Active registrations from hemp-based federal trademark applications that were filed prior to enactment of the Farm Bill have an “amended” application date and lawful first use date of no earlier than December 20, 2018. The fifth anniversary of the Farm Bill enactment is rapidly approaching on December 20, 2023. There are key benefits of federal registration that can be strengthened to improve trademarks five years after the mark began in commerce, particularly if their use has been substantially exclusive and continuous during that timeframe. 

Consult a cannabis industry trademark specialist to improve the critical trademark assets of your business. Rights are granted to the person that first files a federal trademark application or uses the mark in commerce, so do not delay. 

Adam J. Fromm

Member, Clark Hill PLC

Cannabis Industry Group: CANNAMARK 

Disclaimer: This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC.