How To Protect Your Cannabis Brand, Part II

In a post last week, entitled, How To Protect Your Cannabis Brand, we emphasized the importance of marijuana businesses protecting their brand names and we talked of how both state and federal trademarks can be a part of that strategy:

Here is where trademarks (and attorneys) enter the picture. Registering your brands as trademarks is almost always the first step to protecting them. The federal government won’t register cannabis product trademarks due to the federally illegal nature of the product, but many state governments will. State-level registrations can provide real protections in the registering state and they can also serve as notice that you are claiming use of the brand. Once you register and use a trademark in commerce, your rights in it grow over time.

Even certain federal trademarks are possible. You cannot register your strain with the United States Patent and Trademark Office, but you can register your strain name on your auxiliary clothing line. And you can register your strain name on your cookie line as well, but only for cookies, not for cannabis.  But still.

Now we have the Seattle Times, in Pot grower’s ‘Beast Mode’ strain packs punch on how a Seattle medical cannabis dispensary are selling a strain called “Beast Mode,” named after Marshawn Lynch, the Seattle Seahawks’ star running back. The article raises trademark issues relating to marijuana and then quotes our blog as saying that cannabis related products cannot be federally trademarked:

Questions remain about whether a marijuana strain can be trademarked because of the ongoing federal ban on all pot. Seattle-based Canna Law Group, which counsels pot entrepreneurs, advises clients that the US Patent and Trademark Office will not register trademarks for pot-related products.

Not exactly.  Even though the USPTO will not register trademarks for cannabis-products, state trademark registrations are a viable and relatively inexpensive option for protecting your marijuana brand. Obtaining state registration of a cannabis trademark/trade name gives exclusive rights to that trademark/trade name within that particular state.  And to the extent a name is being used in commerce for non-cannabis goods and services, registering a federal trademark is still an option.  In other words, you can register your trade name for your killer brownies that just happen to have marijuana in them, but you cannot register your trade name for the marijuana itself.

Bottom Line: See to federally register trademarks for your products (brownies, t-shirts, etc.) related to marijuana related products, but not the cannabis strain itself. For that, consider a state trademark instead.