Although Wall Street Journal reports that marijuana 2020’s domestic sales surpassed $20 billion, despite being legal in 36 states, cannabis remains federally illegal under the Comprehensive Drug Abuse Prevention and Control Act of 1970. With federal legalization imminent, and a mass array of “infused edibles” ( baked goods, chocolates, candies, beverages, butter, syrups, and vinegar) on the cusp of taking over the shelves, it’s important to have a strong understanding of the complex regulatory landscape and patents, trade secrets, federal and state trademarks’ intricacies to fortifying assets ensuring growth and litigation avoidance.
Currently the Controlled Substance Act list cannabis as a Schedule 1 controlled substance (next to heroin) having a high potential for abuse and for which there’s no currently accepted medical use in treatment and a lack of accepted safety for use under medical supervision. The Controlled Substance Act prohibits the cultivation, distribution, dispensation, and possession of marijuana, and according to the U.S. Constitution’s supremacy clause, state laws conflicting with federal law are generally preempted and void. However hemp, a variety of cannabis Sativa L. containing less than 0.3?% Delta-9 THC.
Hemp has more wiggle room as it yields 25,000 oil and fibrous including cannabidiol (CBD) and offers broad health and wellness uses, serves as food additives, and is in many beauty products. On December 20, 2018, the Agriculture Improvement Act of 2018(Farm Bill) was enacted legalizing hemp and its derivatives, removing it from the Controlled Substance list. Although hemp has been removed from the Controlled Substance list, there are still a few hemp products that violate the Food and Drug Administration(FDA) enforced Federal Food, Drug, and Cosmetic Act.
Even though federal trademarks are denied to all marijuana and many hemp consumer packaged goods, there are other intellectual property protections readily available. Initially, if sufficiently documented, trade secrets can be protected. Trade secrets consist of internal data, formulations, scientific data, and business know-how but require documented and enforced “internal policies” like employment, nondisclosure, or distribution agreements. As long as a company is not running afoul of the Food, Drug, and Cosmetic Act, patent protection may be secured for marijuana and hemp-derived consumer packaged goods.
Patents protect inventions and require novelty and nonobviousness such as no prior third-party sales or publications describing the invention. Furthermore, in states with legalized marijuana, both Common Law and State Trademark registrations may be available. A trademark may be a logo, wordmark, or a special and well-known product design, both protectable at both the state and federal level, and may arise under common law through usage.
Moreover, although federal trademark registration for cannabis and CBD-infused products is still unavailable, federal trademark registration is obtainable for certain Farm Bill compliant hemp products like skincare and cosmetics. Federal trademark registration is achieved by applying with the U.S. Patent and Trademark Office, which prohibits granting a trademark registration for federally illegal material like marijuana. Although, federal trademark law doesn’t prevent filing a trademark application; it just prohibits the U.S. Patent and Trademark Office from registering the mark.
Applying forms a “publication” creating an official record of the applicant’s attempt to assert rights under the trademark law and indicates either use or intention to use the mark. Lastly, while the actual consumer packaged good is ineligible, certain legal cannabis-related activities may achieve federal trademark registration including clothing featuring a marijuana-related trademark(tees and hats) and cannabis and CBD-related content like educational news, blogs, and entertainment.
While cannabis may still be legal for some, there are still many roadblocks that stand in the way of further progression. Thanks to legalization and marijuana reform, consumer packaged goods can obtain intellectual property protection in some way through rigorous logistical obstacles. Although it may not be perfect it is still a small step in the right direction.