Now You Can Trademark Cannabis Products and Services, with Limitations

The consumption of cannabis has been decriminalized in many states of the USA, including in conservative-leaning states such as Arizona. Since then, the business environment has been changing.

The legalization is opening opportunities for a new industry of cannabis and cannabis-derived products and an important revenue source for local governments.

Marijuana consumption is legal for medical use in Arizona thanks to the Arizona Medical Marijuana Act (AMMA), approved November 2, 2010.

Now, the United States Patent and Trademark Office (USPTO) is adapting at the new landscape issuing on May 2, 2019, Examination Guidelines for goods and services related to cannabis and cannabis-derived products and services. This action opens the door to the federal registration for trademark rights, breaking the previous federal resistance to validate cannabis-related businesses in the states where is legal.

Before the release of this Examination Guidelines, the USPTO rejected the registration of cannabis or cannabis-related goods and services, leaving the businesses to rely only on state registrations.

But things get a little technical:

Under these guidelines, cannabis products having a tetrahydrocannabinol (“THC”) content of no more than 0.3% on a dry weight basis are eligible for federal registration on the Principal Register of the United States Trademark Office (USPTO). This registration and content threshold will also apply for services relating to non-ingestible cannabis (such as growing, cultivating, processing and/or dispensing services).

For services such as cultivation and production, the applicant must certify that the activity is conducted under the license or authorization of a state, territory or Native American Tribe. Basically, whatever product or service brand you want to protect needs to be legal in the state or jurisdiction of operation.

The registration also must meet the Federal Food Drug and Cosmetic Act (FDCA). Under federal rules, Cannabidiol (CBD) products such as food, beverages, dietary supplements or pet treats are not registrable even when meeting the THC content of 0.3% or below on a dry weight basis. We are certain these guidelines are susceptible to change again.

If you want to trademark a cannabis brand, you must call us to schedule an appointment with Attorney Marcos E. Garciaacosta at (480) 324-6378.

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