Better Branding

A common question we receive from clientele is whether a cannabis
business can register trademarks with the U.S. Patent and Trademark Office
(USPTO) for their cannabis products and trade names. Currently, the short
answer is no. Because cannabis remains a federal crime under the federal
Controlled Substances Act, the USPTO will not allow cannabis entrepreneurs to
protect their cannabis intellectual property with federal trademarks.
Nonetheless, intellectual property is an emerging area in the field of cannabis
business law. Why? Because national cannabis companies are coming to the
forefront and they realize how important it is to secure their branding now
before the floodgates of more state (and eventually federal) legalization open
to more competition.

Even if you cannot yet obtain federal protection for your strain names,
dispensary storefront or edibles line, you can still obtain state protection
and that’s worth discussing. When addressing cannabis trademark issues, the
following should be kept in mind:

•  
       U.S. trademark rights arise
from using a name “in commerce;” registering a trademark only serves to enhance
those rights. Essentially, you already have common law trademark rights just
through selling your products in commerce. 

•  
       Even though the USPTO will
not register trademarks for cannabis-products, state trademark registrations
are a viable and relatively inexpensive option for protecting your trade name.
 Obtaining state registration of a cannabis trademark/trade name gives
exclusive rights to use that trademark/trade name within that particular state.

•  
       To the extent a name is
being used in commerce for non-cannabis goods and services, registering a
federal trademark is still an option.  In other words, you can register
your trade name for any paraphernalia or swag you’ve generated, but not for the
cannabis itself.

•  
       Cannabis businesses with
the foresight to register trademarks for their brands need to be vigilant about
enforcing their trademark rights or they risk losing them. This means tracking
down infringers and possibly taking legal action against them. Policing your
marks is half the battle to building a great brand.

The commercialization of cannabis means branding will only continue to
increase in importance.  What separates one beer from another is more
often the brand than the taste, and there is little doubt that cannabis branding
will be of equal importance.

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The bottom line:  If you have a brand, protect it with trademarks.  If you
don’t yet have a brand, be sure to get one.