Last week, the TTAB, or Trademark Trial and Appeal Board, refused to register AgrotecHemp Corp.’s “PUREXXXCBD” as a trademark for dietary supplements containing cannabidiol because the product was unlawful. Specifically, AgrotecHemp sought registration for goods identified as:
“Plant extracts for pharmaceutical purposes; vitamins; dietary supplements; all of the foregoing containing CBD solely derived from hemp containing no more than .3% THC on a dry weight basis.”
However, the TTAB found that AgrotecHemp did not have “a bona fide intent to lawfully use the proposed mark in commerce.” Thus, TTAB denied the CBD trademark application.
The TTAB analysis
Here’s how the TTAB broke down the issue and their analysis. The TTAB started with a review of the applicable law and cited to its PharmaCann opinion, which we’ve also previously covered. The standard is:
“For applications based on Section 1(b) of the Trademark Act, such as the present application, if the record indicates that the identified goods include items that are unlawful as of the application filing date, actual lawful use in commerce is not possible, and any intent that the applicant has to use the mark on such goods is not the necessary bona fide intent to use the mark in lawful commerce.”
The TTAB found the CBD trademark was intended for goods in commerce that, at the time of the application, were prohibited under federal law, although they could become lawful in the future. This was because: (1) The goods contain CBD, which is still classified as a drug, and (2) the goods themselves also meet the definition of a drug but have not been approved by the FDA.
AgrotecHemp responds to no avail
AgrotecHemp didn’t dispute that its goods would contain CBD, but tried to distinguish the hulled hemp seeds, hemp seed protein, and hemp seed oil that are generally recognized as safe. The TTAB stuck to its guns, writing:
“Given that the goods will contain CBD as indicated by the identification of the goods and the mark itself, the fact that Applicant’s goods may be derived from “hulled hemp seeds, hemp seed protein, and hemp seed oil” which may be generally recognized as safe does not obviate their unlawfulness under the FDCA. The FDA requires any product marketed with a claim of therapeutic benefit and containing cannabis or cannabis-derived compounds (such as CBD) to be approved for its intended use before it may be introduced into interstate commerce.”
What it means for hemp and CBD trademark applications going forward
The PUREXXXCBD is discouraging, but these TTAB opinions are helpful to know how the lawful use in commerce requirement is continually being analyzed in this space in the context of hemp and CBD trademarks. The USPTO and TTAB is not simply going to accept an applicant’s description at face value in many cases.
To the extent you are considering protecting your intellectual property assets, make sure to become familiar with the functions of the TTAB and where current standards stand so you are assured of maximum protection.