Rafael Arcuri, Henrique Coelho, and Marcelo De Vita Greco just penned a great article in Consultor Jurídico on the denials by the National Institute of Industrial Property (INPI) of applications to register cannabis trademark on the grounds that they offend morality and good customs. The basis for these denials is Article 124(III) of Brazil’s Industrial Property Law (LPI), which prohibits the registration as trademarks of any “expressions, figures, drawings or any other signs that are contrary to morals and standards of respectability or that offend the honor or image of persons or attempt freedom of conscience, belief, religious cult or ideas and feelings worthy of respect and veneration.”
INPI has relied on Article 124(III) to deny the registration of marks such as TheHemp Company. Yet industrial hemp is legal in Brazil, as medical cannabis use is authorized in certain cases. How then, the authors ask, can goods be “at the same time, legal and immoral? What is more, immoral not only in a rhetorical, extralegal way [but] immoral in a way that gives rise to illegality.”
Determining what is, as a legal matter, “contrary to morals and standards of respectability” is bound to be a fraught endeavor. As the authors note, these terms are “vague and have great connotative charge, making it difficult to delimit, a priori, what they describe.” To the extent, however, that we can give some contours to that standard, it is hard to see how “a legal, taxed product that saves lives and is sustainable is immoral.”
Complicating the matter, INPI has not been consistent in its application of Article 124(III). For instance, the agency has approved the registration of the device mark CÂNHAMO CÂNHAMO, which includes a cannabis leaf (cânhamo means “hemp”). INPI has also approved the registration of the word mark PLANET HEMP.
The authors conclude by calling for “predictable and rational” application of the rules, a call that should be heeded by trademark authorities worldwide. While the underlying legal issues are different, we could use more rationality here in the United States when it comes to cannabis trademarks. To deny cannabis businesses that operate legally in highly regulated states the ability to register their trademarks is to place them at the same level as counterfeiters and other criminals. This does not make sense.