Intellectual Property

Subscribe to Intellectual Property

A recent federal appeals court decision has shed light on the legal status of delta-8 tetrahydrocannabinol (“delta-8 THC”) and its implications for cannabis brand owners.  The United States Court of Appeals for the Ninth Circuit held that delta-8 THC falls squarely within the definition of “hemp” under the 2018 Farm Act, and is therefore lawful, despite its psychoactive properties.  Cannabis…
Continue Reading Delta-8 THC Offers a Path to Trademark Protection

The buzz of the cannabis industry has brought with it significant competition. The “green rush” of legalization produced a small group of legitimate competitors in both the consumable and pipe spaces. It is no surprise, then, that innovative companies protected their technology and did everything they could to box out their competition. The industry can expect more of the same as competitors fight for market share in a business ripe for explosion.

This post will examine the three most common forms of patent protection found in the cannabis industry, and an example of where each was litigated.
Continue Reading Patent Enforcement in the Cannabis Industry – Litigation Heats Up as Competitors Jockey for Market Position

Trademark owners in the cannabis field keep trying new ways to register their marks, and who can blame them? Branding is everything in an increasingly online world, and protecting your brand’s reputation is paramount to staying in business, especially when you operate in an industry mired in legal grey areas. The cannabis industry is growing and the laws are constantly…
Continue Reading Yes, Really: The TTAB Affirms That the USPTO Will Not Register Marks for Illegal Goods

As we previously reported, the United States Patent and Trademark Office (USPTO) issued a trademark examination guide last year, broadening the class of cannabis-related goods for which cannabis companies could register their trademarks. The examination guide explained that, because certain hemp-based products with less than 0.3% THC–including CBD–are no longer controlled substances under the Controlled Substances Act (CSA), companies…

Continue Reading Don’t Rush to Apply for that CBD Trademark Just Yet!

Maine is on track to launch its first recreational marijuana businesses in June, four years after its residents voted in favor of legalization. A year ago, Maine created an Office of Marijuana Policy (OMP) within its Department of Administrative and Financial Services. The OMP handles all licensing, compliance, and oversight of medical and recreational use of marijuana. In…
Continue Reading Maine Considers Trade Secret Protection for Cannabis Companies

On January 1, 2020, the recreational use of marijuana will be legal under Illinois law. With the formal enactment of the Cannabis Regulation and Tax Act, it is expected that numerous new companies will be gearing up to enter the Prairie State’s burgeoning cannabis market. As with any new business, one of the first things for owners to consider is the company’s brand, what it will be called and how best to protect it from would-be infringers.
Continue Reading Brand Protection for Illinois’ Budding Cannabis Industry

Federal trademark registrations are now possible to obtain for some hemp-related trademarks.  The U.S. Patent and Trademark Office’s (USPTO) recent guidance, Examination Guide 1-19  “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill” issued on May 2, 2019 (Guide 1-19), clarifies the procedure for examining applications for marks covering cannabis and cannabis-derived goods and services in light of the Agriculture Improvement Act of 2018, Pub. L. 115-334 (also known as the “2018 Farm Bill”).  Guide 1-19 does not change the requirements for obtaining a trademark registration, but instead explains that hemp-related federal trademark registrations (in certain instances) are not barred as a matter of law. …
Continue Reading USPTO Allows Hemp-related Trademarks on or after December 20, 2018

Regular readers will recall that in March we blogged about cannabis-related trademarks.  We now have an update:

On May 2, 2019, the USPTO distributed an Examination Guide updating their practices after passage of the 2018 Farm Bill on December 20, 2018. The Farm Bill removes “hemp” from the definition of “marijuana” in the Controlled Substances Act (CSA), so now…
Continue Reading Likely to be Dazed and Confused – An Update

It is well known that the U.S. Patent and Trademark Office (USPTO) does not allow federal registration for cannabis-related trademarks (discussed by this blog here and here). Some commenters have speculated that, because courts have been chipping away at the bans on immoral, scandalous, and disparaging trademarks, the ban on federal trademark registrations related to illegal activity may be next.
Continue Reading Likely to be Dazed and Confused: the Hazy Future of Cannabis-related Trademarks

Strong intellectual property is the cornerstone of most start-up companies, and in most cases it is the key asset utilized by companies in securing financing and investment.  Studies have estimated that non-tangible assets represent over 80% of an average business’ value, and when it comes to startups, the number is even higher.[1]  The marijuana industry, because of its uncertain legal status under federal law, is at a strategic disadvantage, but despite this fact, the industry has still continued to blossom and is currently valued at $6.7 B and is expected to rise to almost $20 B by 2020.[2]  However, failure to secure traditional forms of intellectual property (i.e., patents, trademarks, and copyrights) should not dissuade marijuana entrepreneurs from the inherent value intellectual property.  Developing a keen business strategy around both traditional and non-traditional forms of intellectual property can open the door to additional revenue opportunities.
Continue Reading Unharvested Opportunities for the Marijuana Industry – Exploiting Non-Traditional Forms of Intellectual Property