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 the need for intellectual property protection. Medical marijuana is legal in 23 states and the District of Columbia. Recreational marijuana is legal in Colorado, Washington, Alaska and Oregon. Michael Atkins, an Intellectual Property attorney at Seattle based Atkins Intellectual Property PLLC said that, from a trademark perceptive, “all this is brand new.”  He described it as a “Wild West.” There hasn’t been a legal situation quite like this where products are legalized on the state level but illegal on the federal level.

Like in any other industry, product names and brand reputation play a pivotal role in a growing business’ success. The way businesses have dealt with the inability to apply for a federal trademark registration with the USPTO is by applying for state trademark registration in those states where marijuana is legalized.

Regardless of the negative associations people have with marijuana, the cannabis business is booming and will continue to grow. Given the size and growth rate of the industry, sophisticated entrepreneurs and business people are anxiously waiting for the ability to protect and maximize their valuable trademark rights.