As cannabis businesses begin competing with one another for customers, communicating their superior quality and value becomes key. Companies that understand the need to differentiate their businesses from their competitor’s businesses come to us asking us what they should be doing to enhance and protect their brands.
To greatly simplify, the goal of branding is to efficiently communicate something about your product. Maybe your cannabis products or strains are cool. Maybe they’re highly potent. Maybe they’re cheap as dirt. The point is that you want to tell customers that products with your brand name will consistently offer whatever it is that you offer. You want consumers to know what you offer simply by virtue of seeing your brand name.
You certainly don’t want other businesses to use your brand names, especially since they may use your brands in a way that damages your reputation or leeches business away from you.
Here is where trademarks (and attorneys) enter the picture. Reserving and 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.
Of course it’s not all that simple. You will want someone do a formal search of your brand names before you spend for trademarking them because you want to make sure that they have not already been claimed by someone else. You also want to make sure that what you consider to be your brand name does not infringe on someone else’s trademark. Trust us when we tell you that cannabis businesses are not immune from being sued for trademark infringement as we have already handled such cases.
Once you have your trademark you will want to monitor it for third-party infringers, lest you accidentally waive your rights. You should also educate yourself about the complex rules and restrictions on placement and content of advertising, the claims you can make about your product, how to target your advertising (see some thoughts on those things here).
The Bottom Line: Marijuana is becoming a business. Businesses thrive on branding differentiation. Think Apple or Coca-Cola or McDonalds. Great companies have great brands, and this is going to be true for great cannabis businesses as well. Create a great brand and protect it.