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Cannabis Trademarks – Marijuanaville

Our trademark attorneys regularly advise new business owners and entrepreneurs launching a new product or service whether their brand names, product lines and brand designs are available for use in their intended marketplace and can be properly registered and protected (see trademark search).

A business owner or entrepreneur’s brand identity (aka trademarks) can be among a business’ most valuable assets.  Trademarks identify the products and/or services of a business, to enable consumers and potential clients to distinguish between its products and/or services from different businesses in the same or similar business industry.  A trademark is a word, phrase, symbol, design, logo, or a combination of elements that identify and distinguish the source of the goods of one business or individual from those of another business or individual.  A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than the source of the goods.

In order to avoid a potential trademark infringement lawsuit, it is important that a new business owner or entrepreneur select a trademark that is distinguishable from any pending or registered state and federal trademarks.  In other words, it is important that a new business owner or entrepreneur avoid launching a brand that would be identical or confusingly similar to any pending or registered state and federal trademarks.  The “likelihood of confusion” standard is often a confusing concept to understand for many business owners.

In a likelihood confusion analysis, the Trademark Act set forth the following factors as the most relevant in determining if a trademark is confusingly similar to a pending or registered trademark: 1) similarity of the marks, 2) similarity and nature of the goods and/or services, and similarity of the trade channels of […]

Avoiding Illegal Trademark Assignment

Trademark ownership may be one of the most lucrative and recognizable assets for any major company. Even still, a trademark’s life is incredibly fragile as any improper mishandling or illegal trademark assignment can completely invalidate the mark. Another important distinction that must be made between trademarks and other financial assets: trademarks require monitoring and care to maintain their value and legitimacy. An illegal trademark assignment often results as a lack of care for the upkeep of a trademark  and may even be considered an assignment-in-gross.

Assignment-in-Gross Doctrine

This lesser-known legal principle instructs that all transfers of trademark ownership must include other related business assets and must be done in genuine goodwill. These business assets may include company shares, trade secrets, management or other financial assets. In turn, it is prohibited to execute a bare transfer during trademark assignment as a mark alone possess no discrete worth.  Any trademark transfer completed without adhering to this guideline will be considered an illegal trademark transfer under the Lanham Trademark Act, 15 U.S.C. §1060.

Understanding whether a trademark assignment was done under genuine goodwill is a more difficult matter to measure. One way that courts will most commonly assess this condition is through a substantial similarity test. This judicial test examines both the quality and description of the goods and services before and after the transfer. Uniformity in the description of goods and services prevents a trademark assignment from intentionally misleading or confusing consumers. The guidelines for consistent quality of goods and services, however, can be quite exacting at times. In fact, some courts have observed that even nuanced differences in quality can cause a mark to fail the substantial similarity test.  In the landmark 1920 Supreme Court case of Coca-Cola Co. v. Koke Co. of America, for instance, an assignee using a pepper-flavored beverage […]

How to Brand Your App

As mobile device applications are now comprising a multi-billion dollar industry, mobile marketing has now become a cutting-edge business tool and a premier branding resource. Smartphones are now the top form of communication. In fact, consumers spend close to 90% of the time on their smart phones using mobile applications.  Many researchers also predict increased surges in the number of people with access to smartphones and the amount of time spent on smartphones and smart devices in the coming years.  All these findings make app development and mobile marketing techniques that much more valuable. Here are three helpful tips we think can help professionals and business owners welcome the mobile marketing frontier to better brand their marks.
1. Know Your Market
The wake of social media marketing can be intimidating for any promising entrepreneur or growing business as mobile market behaviors seem to be constantly readjusting. Fortunately, there is an abundance of resources available to business owners to help you understand and respond to shifting market patterns. One easy tactic for businesses to understand their market is to search for how consumers are discussing their good or service on different social media platforms. Some industries may need to wish to appeal to broad markets on Facebook or Pinterest, while other businesses may aim to target younger audiences on platforms like Twitter or Tumblr. Experimenting with different social media outlets and connecting with clients through through social media can be an excellent way for businesses to understand the interests, values and quirks of their audience. Surveys, polls, and live-feed videos can also be a helpful tool for businesses to directly connect consumers with their brand. Some companies may even interact with related businesses or competitors to study their marketing tactics and better understand the […]

Can You Trademark Cannabis Based Products?

As the cannabis industry in the United States grows and becomes more acceptable, medically and recreationally, our trademark attorneys are getting many inquires as to whether a business or individual can you register a trademark for marijuana products?

Especially in states were marijuana is legalized for recreational use, entrepreneurs looking to make millions from marijuana products, see the lack of protection for their intellectual property as a huge obstacle in the materialization of profits. A perfect example of this is Denver Relief, a pot dispensary business that won a quality competition for its “Bio-Diesel” strain. Soon after, competitors all around the city started using the name “Bio Diesel” with lower-quality strains.

The lack of trademark protection for intellectual property in the cannabis industry is creating hurdles for entrepreneurs and investors in this growing industry. The reason marijuana-based products have yet to be recognized by trademark law is because cannabis is listed as a Schedule One substance on the federal list of controlled substances. Therefore, the USPTO cannot issue trademarks for marijuana-based products. This is a huge issue for businesses in this industry.Aaron Houston, a strategist for Weedmaps, a listings and review site for marijuana dispensaries around the U.S., said he hears from clients regularly that they have developed a new strain of marijuana only to have a competitor immediately copy it. This sort of unfair competition is what trademark law protects against. But because the industry is novel and cannabis is a Schedule One substance, companies cannot turn to the USPTO for protection.

The cannabis industry is worth approximately $1.53 billion and is expected to reach $10.2 billion in the next five years. The growing rate of legalization throughout the country needs to be accounted for in understanding […]

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