27 min
Podcast 10: How to Protect Cannabis Trademarks (Marijuana, Hemp & CBD) Trademark Titan Blog Podcasts: Trademarks, Trademark Law, Copyrights, Copyright Law, Patents, Branding Laws
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- Business
U.S. TM Registration for Cannabis, Marijuana, Hemp & CBD Marks and
Other Intellectual Property Protections for Cannabis Businesses
Podcast Episode Begins as :45s
How to Protect Cannabis Trademarks. With the recent exception of certain hemp-based products and services, the U.S. Patent and Trademark Office (USPTO) does not grant trademark registrations for marks for marijuana/cannabis products and services that “touch” the plant because use of trademarks must be lawful under federal law for federal trademark registration eligibility.How to Protect Cannabis Trademarks
Brand owners may, however, secure federal trademark registration for marks for cannabis-related activities that are legal and arguably also preserve trademark rights for future geographic and product and service expansion under the same registered mark for “related” goods and services that are unlawful as of the trademark application filing date, but later become lawful, including Cannabidiol (CBD) infused foods and marijuana itself.
Marijuana vs. Hemp – What’s the Difference?
* Marijuana is currently listed as an illegal Schedule I drug under the Controlled Substances Act (CSA) due to its high potential for abuse attributable to the psychoactive effects of delta-9- tetrahydrocannabinol (THC). how to protect cannabis marks
* Hemp has historically been grown for its strong fibers used for industrial purposes, including for making fabrics and rope. There is a significant difference between marijuana and hemp with respect to THC concentration. While marijuana can reach THC levels of 30%, THC levels in hemp are typically 0.3% or less. Furthermore, CBD is derived primarily from the hemp plant. How to Protect Cannabis Trademarks
2018 Farm Bill Removes Hemp from the Definition of Marijuana
The 2018 Farm Bill changed certain federal laws and regulations concerning the production and marketing of “hemp.” Those changes included removing hemp from the CSA’s definition of marijuana, which means that hemp and its derivatives, such as CBD, that contain 0.3% or less of THC on a dry-weight basis are no longer considered controlled substances. That recent change allows brand owners to federally register trademarks for hemp-based products and services that meet the new guidelines.
Food and Drug Administration (FDA) Still Regulates Certain Hemp-Derived Products
However, the 2018 Farm Bill explicitly preserved the FDA authority to regulate certain products containing cannabis or cannabis-derived compounds. Because CBD is an active ingredient in the FDA-approved drug Epidiolex, FDA regulation does not allow the active ingredient CBD to be introduced lawfully into any foods or dietary substances absent FDA approval. Thus, not all hemp-derived products that contain 0.3% or less of THC are lawful because some may still violate the federal Food, Drug and Cosmetic Act (FDCA), including human foods, animal foods and nutritional supplements containing hemp-derived CBD.
USPTO Examination Guide 1-19 for examining cannabis marks states that:
“[r]egistration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce.” How to Protect Cannabis Trademarks
FDA guidelines indicate that hemp seeds, hemp seed protein powder and hemp seed oil may be used in human foods, as long as they comply with other requirements, since those three ingredients have been generally recognized as being safe by the FDA.
For those companies that fail to comply with FDA requirements… beware that the FDA monitors and investigates the sale of products that violate FDA laws, including CBD products promoted for therapeutic uses and treating diseases. When the FDA detects such violations,
U.S. TM Registration for Cannabis, Marijuana, Hemp & CBD Marks and
Other Intellectual Property Protections for Cannabis Businesses
Podcast Episode Begins as :45s
How to Protect Cannabis Trademarks. With the recent exception of certain hemp-based products and services, the U.S. Patent and Trademark Office (USPTO) does not grant trademark registrations for marks for marijuana/cannabis products and services that “touch” the plant because use of trademarks must be lawful under federal law for federal trademark registration eligibility.How to Protect Cannabis Trademarks
Brand owners may, however, secure federal trademark registration for marks for cannabis-related activities that are legal and arguably also preserve trademark rights for future geographic and product and service expansion under the same registered mark for “related” goods and services that are unlawful as of the trademark application filing date, but later become lawful, including Cannabidiol (CBD) infused foods and marijuana itself.
Marijuana vs. Hemp – What’s the Difference?
* Marijuana is currently listed as an illegal Schedule I drug under the Controlled Substances Act (CSA) due to its high potential for abuse attributable to the psychoactive effects of delta-9- tetrahydrocannabinol (THC). how to protect cannabis marks
* Hemp has historically been grown for its strong fibers used for industrial purposes, including for making fabrics and rope. There is a significant difference between marijuana and hemp with respect to THC concentration. While marijuana can reach THC levels of 30%, THC levels in hemp are typically 0.3% or less. Furthermore, CBD is derived primarily from the hemp plant. How to Protect Cannabis Trademarks
2018 Farm Bill Removes Hemp from the Definition of Marijuana
The 2018 Farm Bill changed certain federal laws and regulations concerning the production and marketing of “hemp.” Those changes included removing hemp from the CSA’s definition of marijuana, which means that hemp and its derivatives, such as CBD, that contain 0.3% or less of THC on a dry-weight basis are no longer considered controlled substances. That recent change allows brand owners to federally register trademarks for hemp-based products and services that meet the new guidelines.
Food and Drug Administration (FDA) Still Regulates Certain Hemp-Derived Products
However, the 2018 Farm Bill explicitly preserved the FDA authority to regulate certain products containing cannabis or cannabis-derived compounds. Because CBD is an active ingredient in the FDA-approved drug Epidiolex, FDA regulation does not allow the active ingredient CBD to be introduced lawfully into any foods or dietary substances absent FDA approval. Thus, not all hemp-derived products that contain 0.3% or less of THC are lawful because some may still violate the federal Food, Drug and Cosmetic Act (FDCA), including human foods, animal foods and nutritional supplements containing hemp-derived CBD.
USPTO Examination Guide 1-19 for examining cannabis marks states that:
“[r]egistration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce.” How to Protect Cannabis Trademarks
FDA guidelines indicate that hemp seeds, hemp seed protein powder and hemp seed oil may be used in human foods, as long as they comply with other requirements, since those three ingredients have been generally recognized as being safe by the FDA.
For those companies that fail to comply with FDA requirements… beware that the FDA monitors and investigates the sale of products that violate FDA laws, including CBD products promoted for therapeutic uses and treating diseases. When the FDA detects such violations,
27 min
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