As more states legalize adult-use and medical marijuana, more businesses are entering this market. Like any other business, protecting a brand is a priority; however, how can you file for a trademark if the product you are selling is legal in your state but illegal at the federal level?
Federal trademark law prohibits the registration of any products that cannot be sold legally across state lines. Under the Controlled Substances Act (CSA), marijuana cannot be sold across state lines, thus preventing trademark registration with The U.S. Patent and Trademark Office (USPTO). At present time, it is the policy of the USPTO to reject all trademark applications for marijuana related goods and services as illegal under the CSA.
There is a way for you protect your brand from a local level by registering a state-based trademark where marijuana is legal. It can prevent competitors to use brands that may be similar to yours. This option, however, will not allow you to seek remedy from companies who are operating from a different state.
Another alternative is to register for a trademark at the federal level for non-marijuana based products and services. The hope is that these registrations may later include use in combination with marijuana products if marijuana is federally legalized. If your mark in the application, however, is also used for other goods and services deemed illegal under the CSA, then the USPTO will reject your application based on the state law.
Though you cannot receive trademark protection under federal law for marijuana, it is important to be aware that there is still the risk of infringement claims by other businesses. We have been assisting our clients in the area trademark law for many years, and can help guide you in setting up your trademarks early to establish common law rights, seek federal registration for any trademark uses that are legal under the CSA, and file state registrations in states where the trademark is in use. Call us today for a consultation.