Starting a new business involves significant creative, time and financial investments. Protecting those investments is absolutely critical in any business, let alone the incredibly fast moving and growing cannabis business. As new states (and even countries) legalize cannabis, intellectual property laws, specifically Federal trademark and patent, are the most efficient and effective way to protect your brand, inventions and most importantly the human capital you’ve invested in your business. But with cannabis still a Schedule I drug and illegal at the Federal level, how can a cannabis entrepreneur access the protections needed? This post will explore Federal trademark protection, and a future post will discuss Patents.

Trademarks protect your brand and act as a source identifier. When you make a quality product, cannabis or otherwise, your trademark will make sure consumers know that they are going to get that high quality product when your trademark is present. There are a number of legal requirements for registering your trademark with the US government, and this article will not go into all of those outside those applicable to cannabis products.

First and foremost, don’t believe the myth that trademark protection is unavailable to cannabis businesses! Cannabis’ status at the Federal level is likely to change in the coming years, and when it does, having your trademarks registered will be critically important. At this point, the US Patent and Trademark Office refuses to grant trademarks that specifically cover cannabis/marijuana and related illegal paraphernalia. However, a careful trademark attorney can craft trademark protection around this prohibition. You may be able to secure protection for clothing, services, accessories, and/or many other myriad items that are not specifically illegal. It is also important not to deceive the USPTO in your efforts, as that can lead to a host of problems including trademark cancellation and available civil remedies for other parties who can claim injury. Federal registration of your marks, even if not specifically associated with cannabis itself, can be beneficial in the future.

Regardless, the legal landscape in this area is complex, and there are significant consequences for missteps. Skilled legal counsel can help navigate this complexity and secure trademark protection. While it is possible for a business owner to apply for a trademark directly on the USPTO website, it is not a recommended course of action. Of course, the available legal protections and path forward are depend on the facts of your situation.

Nothing in this post constitutes legal advice or representation. Please contact me directly to discuss how these new regulations impact your specific business situation.

© McConnell Law Firm 2019