New trademark guidelines issued from the USPTO regarding Cannabis and CBD

On May 2, 2019, the Trademark Office issued a new exam guide on marks for cannabis and cannabis-related goods and services. The Patent and Trademark Office (“USPTO”) refuses to register marks for goods and/or services that show a clear violation of federal law. A determination of whether commerce involving cannabis and cannabis-related goods and services is lawful requires examination of: (1) the Controlled Substances Act (21 U.S.C. §§ 801 et seq.)(“CSA”), (2) the Federal Food Drug and Cosmetic Act (21 U.S.C. §§301 et seq.)(“FDCA”), and (3) and the Agriculture Improvement Act of 2018 (Pub.L. 115-334)(“the 2018 Farm Bill”). These new exam guidelines are based upon the new 2018 Farm Bill.

For more specific information visit the USPTO information at https://www.uspto.gov/sites/default/files/documents/Exam%20Guide%201-19.pdf 

The 2018 Farm Bill amends “hemp” to “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” These changes mean that cannabis plants and derivatives such as CBD that contain no more than 0.3% THC on a dry-weight basis are no longer controlled substances under the CSA.

To be registrable, the identification of goods of the trademark must specify that they contain less than 0.3% THC. Also, the goods must be derived from “hemp,” not marijuana.

However, even if the goods pass legality under the 2018 Farm Bill, they must also be legal under the FDCA. The 2018 Farm Bill preserved the FDA’s authority to regulate products containing cannabis or cannabis-derived compounds under the FDCA. Therefore, registration for marks for foods, beverages, dietary supplements or pet treats containing CBD will still be refused under the FDCA. ( 21 U.S.C. §331(ll) prohibits introduction into commerce of any food to which has been added a drug approved under section 355 of this title, a biological product licensed under section 262 of title 42, or a drug or a biological product for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public.)

For applications with services involving the cultivation or production of cannabis that is hemp within the meaning of the 2018 Farm Bill, the applicant will also be required to demonstrate their authorization to produce hemp. Under the 2018 Farm Bill, hemp cultivation or production requires a license from the state pursuant to the USDA guidelines, which are yet to be established.

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