USPTO Issues New Examination Guide for Cannabis-Related Marks in Wake of 2018 Farm Bill

By James Cronin

The USPTO recently issued a new examination guide for federal trademark applications that identify cannabis or cannabis-related goods or services. In the examination guide, the USPTO clarifies the examination procedure for cannabis related marks in the wake of the 2018 Farm Bill, which was signed on December 20, 2018 and removes "hemp" from the definition of marijuana under the Controlled Substances Act—"hemp" being defined as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis."

Prior to the 2018 Farm Bill, the USPTO refused registration for federal trademark applications identifying cannabis or cannabis-related goods or services based on the goods or services violating federal law. With the passage of the 2018 Farm Bill, the USPTO will now allow registration of trademark applications filed on or after December 20, 2018 for cannabis-related goods or services when the identified goods or services are limited to cannabis that is "hemp" (i.e., cannabis that contains no more than 0.3 percent THC on a dry weight basis), provided that other requirements are met. The examination guide makes clear that the USPTO will refuse registration of marks for foods, beverages, dietary supplements, or pet treats containing "hemp" derived cannabidiol (CBD) as being unlawful under the Federal Food Drug and Cosmetic Act.

Further, the registration of an application that recites services involving the cultivation or production of cannabis that is "hemp" will be subject to the applicant's confirmation that its "activities meet the requirements of the 2018 Farm Bill with respect to the production of hemp" (i.e., that the production is under a state or tribal government license in accordance with a plan approved by the USDA).

Trademark applicants should also keep in mind that the USPTO may still refuse the registration of an application when it is apparent from a specimen of use provided to the USPTO that the applied-for mark is being used in connection with cannabis that is not "hemp."

View a copy of the USPTO's new cannabis Examination Guide for trademark applications.

For more information on the new USPTO examination guide for federal trademark applications, please contact James Cronin or the Stinson LLP attorney with whom you regularly work.

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