CBD Trademarks - 2019 Update

Many CBD brands are now eligible to register for trademarks, as of a few weeks ago. Recently, The USPTO became one of the first federal agencies to provide guidance on the difference between CBD and cannabis, and as such will allow certain lawful CBD products to register their marks and protect their intellectual property nationwide. In contrast to this development, we are still waiting for banking regulators to distinguish between cannabis and hemp-derived products, and you can read more about that here.

If you are a CBD brand interested in filing for trademark protection, you can learn more about which products qualify and the USPTO’s stance towards CBD below.

Recently, the USPTO published Examination Guide 1-19 which distinguishes between <0.3% THC hemp-derived products (CBD) and cannabis, reflecting changes created by the passage of the Farm Bill in December 2018. The USPTO Guidance also recognizes that not all CBD products are lawful after the passage of the Farm Bill, and certain products which are regulated by the FDA will not be approved for trademarks. CBD is an active ingredient in an FDA-approved drug (Epidiolex) and is a substance undergoing clinical investigations. For this reason, it is unlawful to include CBD in dietary supplements, beverages, food, and pet treats.

*NB as is the case for all trademark filings, you must show use in commerce in order to have your trademark approved, so your brand should already be on the market as an existing product or service.

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The Farm Bill & USPTO

As discussed in previous articles, the 2018 Farm Bill has had significant implications for the legal status of CBD, and for the creation of a CBD consumer product boom in the U.S. The shift is significant because brands that applied for trademarks before December 20th, 2018 will need to re-file their applications, since they were not “lawful” at the time they originally filed.

According to the Examination Guide released by the USPTO, any application filed prior to December 20, 2018, identifying goods or services encompassing CBD (and all other cannabis products) will be refused, “due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA.” If issued a refusal, an applicant can abandon the application and file a new one, submitting evidence and arguments against the refusal, or amend the filing date of the application to December 20, 2018.

For businesses hoping to amend their filing date, they must complete the following changes:

  • The use of the mark in commerce under Section 1(a) of the Trademark Act, 15 U.S.C. §1051(a) must be amended to reflect an intent to use the mark in commerce under Section 1(b), 15 U.S.C. §1051(b).

  • Identify goods or services to explicitly state that the CBD products offered or involved contain less than 0.3 percent THC.

  • Any application covering services involving the cultivation or production of hemp must respond to inquiries regarding the applicant’s authorization to produce hemp pursuant to the Farm Bill.

Must be a Lawful Product - FDA

For more information about FDA regulations and CBD products, check out our Guide to CBD Laws.

The Farm Bill delegated to the FDA and preserved their authority to regulate food, drugs, and cosmetics. As discussed above, the FDA has approved CBD as a drug (Epidiolex). Under section 301(ll) of the FD&C Act [21 U.S.C. § 331(ll)], it is prohibited to introduce or deliver for introduction into interstate commerce any food (including any animal food or feed) to which has been added a substance which is an active ingredient in a drug product that has been approved under section 505 of the FD&C Act [21 U.S.C. § 355], or a drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public. In addition to food with added CBD being an unlawful product under FDA regulations, beverages, dietary supplements, and pet treats containing CBD are also not cleared by the FDA. As such, these product categories are currently ineligible for trademark filings. When the FDA provides clear guidance and if they end up creating two regulatory tracks - one for low-dose and one for high-dose CBD products - as has previously been discussed, there could be a path in the future for these product categories to be recognized as lawful and become eligible for trademark registration.

A New Opportunity for CBD Brands

The Examination Guide has provided significant clarification on the USPTO’s stance towards CBD products, and the process of registering CBD products for trademarks. Many companies will now be eligible to file for marks in order to protect their brands. This is especially important because The Farm Bill explicitly allows for interstate commerce of certain hemp products, so many CBD companies are in the process of building out a national presence.

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Lauren Estevez is an attorney who advises international, multi-state and California cannabis brands, operators, and investors. She is nationally recognized as a subject matter expert in Cannabis Law and her work has been featured on CNBC, Bloomberg Law, and SXSW. The National Law Journal awarded Lauren the recognition of Cannabis Law Trailblazer in 2019. Lauren is the founder of LME Law.