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Power of the Brand

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As cannabis businesses begin competing with one another in a soon-to-be licensed California, it’s all the more important for them to protect their brand. However, in light of the federal government’s barrier to protection, cannabis companies have come up with creative ways to protect their image by trademarking everything aside from their cannabis. A lot of businesses file to protect their logo and brand in connection with ancillary products that are a “lawful” use in commerce—apparel lines, ashtrays, bags and gear—you name it, they trademark it. The problem is—these brands are putting their creative mind into commerce without protection. Assembly Bill 64 aims to fix that with new access to trademark protection.

Federal Trademarks Won’t Protect Cannabis

Trademarks are a federal protection filed with the United States Patent and Trademark Office (USPTO) that prevent other businesses from using another’s unique mark, name or logo. However, businesses requesting protection must be “lawful.” Therefore, while cannabis businesses can file for any slew of trademarks, stating a purpose poses a bit of a problem because technically, cannabis is not considered “lawful” use in commerce. Accordingly, the USPTO won’t grant registration of a mark that is directly associated with the plant or cannabis-infused goods.

“The California Secretary of State already has the power to register state-level trademarks, but only for items recognized by federal trademark law.”

Makeshift Cannabis Trademarks

But wait, there is more. Although cannabis trademarks are a no-go, trademarks for CBD as a hemp extract have been approved by the USPTO. Thus, some companies even go as far as to create a CBD line simply for the purposes of trademarking it. That’s probably as close as you can get to a cannabis trademark. This is what trademarking looks like in the cannabis industry—cannabis companies with makeshift protection. That is, unless Assembly Bill 64 passes.

AB-64 Creates Trademarking Protections for Cannabis

State trademark registration provides similar protection to that of the federal trademark registry, but at the state level. Currently, California does not register trademarks associated with cannabis products. However, AB-64 seeks to create a state-level trademark for California cannabis products, providing cannabis businesses new legal protections as the state ushers in its new commercial marketplace!

The California Secretary of State already has the power to register state-level trademarks, but only for items recognized by federal trademark law. Assembly Bill 64 would change that by allowing the Secretary of State to register trademarks for cannabis goods and services. The limitation—registering a trademark with a particular state provides protection to that brand in that state and that state alone. For marks issued after January 1, 2018—marks with purposes relating to medical cannabis and nonmedical cannabis goods and services will be authorized.

More Protection Doesn’t Mean More Billboards

As enticing as brand protection may be, AB-64 comes with some restrictions that may put a halt in your advertising campaign. While the landscape of the cannabis industry in Los Angeles is colored with brands, logos, unforgettable names and creative packaging—it may not be for long despite these new protections. AB-64 provides brand protection, but it also prohibits billboards from advertising cannabis on interstate highways. Los Angeles’s nine-foot tall cannabis billboards and advertisements may be short lived. AB-64 may give you the legal tools to grow your business, you just can’t “grow it” on a billboard over the 405 Freeway.

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