The issue with Marijuana and U.S. Federal Trademarks
In the United States, marijuana is federally illegal. In certain states, marijuana is legal for medical consumption, recreational consumption, or both. As marijuana legislation advances, and more states legalize the plant, the issue remains for brands seeking to acquire a trademark with the United States Patent and Trademark Office (USPTO). A registered trademark with the USPTO, provides trademark protection throughout the entire United States, its territories and possessions.
It is important that business and brand owners know that the United States Patent and Trademark Office is a federal agency. All United States federal agencies must follow federal law when engaging in anything related to marijuana.
What the DIY Trademark Websites DO NOT Tell You
Do-It-Yourself trademark websites can be very misleading to business owners, especially in the Marijuana and Cannabis Industry. Many of these companies can be predatory to marijuana business owners seeking to protect their intellectual property with a trademark. Extremely low and cheap prices are often used to bait small business owners into purchasing "trademark registration services".
These DIY trademark websites do not conduct thorough trademark searches and clearances. The few that do, use artificial intelligence (a machine), and not a trademark attorney to conduct searches for their clients. These websites (and some trademark attorney mills) do not audit your marijuana business. Using these DIY trademark websites often result in office actions, final refusals, cancellations, and trademark infringement litigation. The very few trademarks that are registered lack sufficient class ID descriptions to fully protect brands from confusingly similar trademarks.
The Marijuana & Cannabis Industries are under higher scrutiny with the Trademark Office
When considering an application for registration, trademark examining attorneys must abide by United States Federal Marijuana laws. Marijuana business owners are prohibited from securing a registered trademark with the USPTO. The only marijuana business owners that have a good chance to receive a registered trademark, are those who do not sell any plant product (marijuana blunts, joints, dry flowers, oils, tinctures, edibles, extracts, isolates, etc.)
If you sell marijuana related goods such as: rolling papers, stash boxes, rolling trays, jars, clothing, vaporizers, cones, etc., you are not in violation of United States Federal marijuana laws. The trademark office is likely to consider your application and not issue an office action due to selling illegal products. It is important to know that ancillary marijuana companies are not allowed to have any links on their websites, which will lead consumers to the purchase of marijuana goods. Yes, the trademark examining attorney will search your website and social media evidence to determine whether or not you are attempting to sell or lead consumers to other websites that sells marijuana.
All hope for a trademark is not lost if you sell marijuana goods in a legal state
If you sell marijuana in a state where it is legalized, all hope is not lost to obtain a trademark. In this instance, small marijuana business owners must think like a Multi-State operator. Multi state operators do in fact have trademarks for their marijuana products. Multi-State operators have a mindset that everything that they do is an investment. Sure, they have very deep pockets, but it is the mindset that ultimately counts. Multi-State operators hire experienced trademark attorneys to assist in protecting the intellectual property of their marijuana brand.
Multi-State operators obtain registered trademarks in their respective Secretary of State's trademark office. Under any other trademark circumstance, trademark attorneys would never advise clients to file for a State trademark. Why? State trademarks ONLY protect your mark within the geographical boundaries of that State. This means that someone from another State could get a U.S. trademark with the same name for the same goods and services, they just would not be able to operate in that one state.
Budz & Bubbles is a Multi-State Operator of dry marijuana flower and edibles in each state where marijuana is legal. Budz & Bubbles has both a medical and recreational licenses. The owner of Budz & Bubbles knows that marijuana is federally illegal, but they need to secure a trademark to stop their competitor GreenBudz & Bubbles from confusing their consumer base.
A Trademark attorney advises Budz & Bubbles that since marijuana is legal in all of those states, they can apply for state trademarks in each individual state. This is a legal tactic to stop GreenBudz & Bubbles from infringing upon their trademark rights.
Trademarking Your Marijuana Brand
Trademarking your marijuana brand is a huge accomplish. A registered trademark automatically increases the value of your business and brand. This will allow small marijuana business owners to have more negotiating power with investors and at pitch events. If you are in need of a registered trademark, Belle Terre Law Firm has an experienced Marijuana, Cannabis, and Trademark attorney to help protect your business and brand. Click the link below to learn more.