If you sell hemp or cannabidiol (CBD) products, then you already know that the law is rapidly changing. The Trademark Office is currently working to keep up with these changes. If you have recently filed or want to file a trademark application for hemp or CBD trademarks, be prepared for delays. There are also a few things that you need to know before filing. Fortunately, the Trademark Office issued some guidance for Trademark Examining Attorneys earlier this month. We can use this document to understand what will happen with these applications.
Background
As discussed in a previous post, the Trademark Office only grants registrations for marks lawfully used in commerce. And that means under federal law, not state law. The U.S. Patent & Trademark Office is a federal agency, after all. This means you cannot register a trademark for most cannabis products, as they are illegal under the Controlled Substances Act (CSA).
The 2018 Farm Bill, signed into law on December 20, made some changes to the relevant law. The Farm Bill removed hemp from the Controlled Substances Act’s definition of “marijuana.” This paved the way for the lawful sale of some products derived from the cannabis plant. This includes CBD products containing no more than 0.3% THC on a dry-weight basis. However, these products have to be derived from hemp, and not from “marijuana” under the CSA.
Examination Delays
Before we look at the impact these changes have had, I want to discuss what is happening now. Applications that the Trademark Office believes may be related to cannabis, hemp, CBD, or other CSA-related products are facing significant delays. Normally, it takes the Trademark Office about 3-4 months to review an application. These applications are being placed into a separate “stack” for review, though. Separating these applications allows the Trademark Office to conduct additional investigation into them. Also, there is a tremendous surge in new hemp and CBD businesses. As a result, more applications for these types of products are being filed. This is causing a significant delay in the review of hemp and CBD trademark applications.
Applications for Hemp and CBD Trademarks
The biggest issue regarding these hemp and CBD trademark applications has to do with the date they were filed. For any applications filed after December 20, there is no problem, so long as the products are now legal. However, many people filed applications before December 20, mistakenly believing that their products had already been legalized. Unfortunately, that was not the case.
Normally, the applications filed for hemp and CBD products before they were legal would go abandoned. They would not proceed to registration because the products were unlawful, or the owner of the application lacked a bona fide intent to use the trademark with legal products. But because the products have since been made legal, the Trademark Office is making an exception for these applications to move forward. Applicants will be given the option to amend the filing date of their hemp and CBD applications to December 20. If they choose to do so, they can avoid the cost of filing a new application. They also get the benefit of the December 20 filing date (which, unless you have a time machine, you will never get another shot at).
Applicants should be aware that these changes to the CSA do not guarantee that they will avoid conflicts with federal law. For example, some products may not comply with the Federal Food Drug and Cosmetic Act. Finally, applicants providing cannabis-related services should make sure that their services comply with federal law before filing an application.
Need to Protect Your Hemp and CBD-Related Trademarks?
While the wait for your application to be reviewed may take several months, that is no reason to put off registering trademarks for your new business. The earlier you can file in this “blossoming” industry, the better! If you have questions or would like to start working toward protecting your brand, please call me at (480) 360-3499, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.
