Medicinal marijuana has everyone seeing green. The current legalization in 20 states and Washington D.C. indicates that when the smoke clears, pot legislation will still be standing. With competition growing (literally!) and investments in the cannabis business rising, protecting trademarks will become an inevitable economic necessity.
The USPTO may refuse the registration of a federal trademark if the mark consists of immoral or scandalous matter (also known as a § 2(a) refusal). Trademark law demonstrates that illicit activities and drug-use are presumed immoral and scandalous. However, in 2010, the USPTO made a promising gesture of federal approval when it created a new trademark category for “processed plant matter for medicinal purposes, namely medical marijuana.” The new class led to a high of applications by pot dealers and those in the dispensary business. Applicants sought to register names such as “Budtrader,” “Keef Cola,” and “Maui Wowie.”
Three months after offering the new class and before any successful registrations, the trademark office crushed the dreams of entrepreneurs and stoners alike. A spokesman for the USPTO commented that the category raised “examination issues” and adding the new class was “a mistake.” Despite this withdrawal, cannabis-related industries are still blazing ahead. A current search of the federal trademark database yields 29 live applications, with 18 of them being successfully registered marks. Has the trademark office overlooked the “examination issues” of a marijuana class?
Upon closer examination, the successfully registered marks are used in connection with legal goods and services that are simply related to marijuana. For instance, MARIJUANAHOLIC is use for apparel goods and PEFRECT MARIJUANA is used to offer counseling services in the fields of health, herbalism, and lifestyle wellness. The goods and services provided under the trademarks do not directly participate in the sale of cannabis or cannabis containing products. “Bhang, the original cannabis chocolate” was rejected, likely because of this distinction.
But will this distinction soon become a blurred line? As more states continue to pass positive marijuana legislation (Colorado and Washington recently legalized recreational use), the legal profession is becoming an active participate in the cannabis change. Law firms in pro-weed states are expanding to help growers and dispensers navigate the unique business and intellectual property challenges facing this market.
Pot enthusiasts may currently obtain state trademark registrations in legalized states but interstate trade is only possible with a federal stamp of approval. 4 additional states now have pending legislation to legalize medicinal marijuana. It is likely that this trend will continue and intellectual property protection will follow. The U.S. will always be split between red and blue states, but perhaps the marijuana movement will add a unifying color to the mix . . . green.
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