New Trademark Examination Guide 1-19 – Some CBD Products Can Now Have Federal Trademark Registrations
Miller & Martin PLLC Alerts | May 14, 2019
In the continuing evolution of Cannabis law in the U.S., the United States Trademark Office is now prepared to allow at least some Cannabidiol (CBD) containing products to have federally registered trademarks. New guidelines were officially promulgated on May 2, 2019, which interpret the effect of the 2018 Farm Bill modifying the Controlled Substances Act (CSA) so that hemp-derived CBD is now no longer considered by the federal government to be a controlled substance.
However, all CBD-containing products are not treated equally. Only those derived from hemp (and which must contain no more than 0.3% tetrahydrocannabinol (THC)) are eligible to be considered for registration. CBD products derived from marijuana still violate the CSA, and their trademarks still cannot be registered. Additionally, if the CBD product is a food or dietary supplement, then a trademark application for such goods will likely be refused under the Federal Food Drug and Cosmetic Act (FDCA) since CBD is an active ingredient in U.S. Food and Drug Administration (FDA)-approved drugs and is still in the clinical investigation stage. Finally, the Trademark Office will likely make the applicant prove that the source of hemp is legal.
In short, the Guide provides clear guidance that some CBD-containing products can be registered, but suggests that Examining Attorneys will likely maintain the process as being very difficult for applicants to navigate the rules to obtain federal registrations for their brands.
If you filed your trademark application before December 20, 2018, you will need to amend your application. Applications filed before December 20, 2018 (the date of the 2018 Farm Bill) will be denied “due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA” because at the time of filing the goods violated federal law. For these applications, the Examining Attorney will permit applicants to amend such applications by amending the filing date and basis.
For more information, contact Miller & Martin's Stephanie Savage or Stephen Stark.