Now that marijuana has entered the marketplace, entrepreneurs in the industry are seeking the same protections enjoyed by other businesses – trademarks for their products. Currently, cannabis business owners cannot register at the federal level for trademarks. They must acquire a trademark through state channels.
Trademarks are important to businesses because they offer legal support in building a recognizable brand. The purpose of a brand is to immediately communicate the unique qualities of a product to a potential customer. A trademark helps to prevent competitors from using the same brand name. As cannabis growers and retailers work to build their brands, trademarks become increasingly important.
The path to trademark protection runs through states where cannabis has been made legal. A company that registers and receives a trademark within a state benefits in two ways. First, it serves as public notice that the brand has been established. Secondly, a state-issued trademark offers broader legal protection against brand infringement than common law alone.
The problem for business owners with state-only trademarks is that they are only valid within the issuing state. Businesses need to do a separate trademark search in each state in which they want to do business. The search is an essential part of the process to ensure that a brand name is not infringing on another product’s legal rights. Once the name is cleared, the company may then register with the Secretary of State.
Although the United States Patent and Trademark Office (USPTO) prohibits marijuana enterprises from acquiring federal trademarks for products containing cannabis, it is sometimes possible to register brands of products made by the same company that do not use cannabis in their manufacture, such as an apparel line.
Patents are a different story. The USPTO guidelines for obtaining a patent for a cannabis plant include the development or discovery of, and the asexual reproduction of, a new strain of plant. Patents are designed to give an inventor an economic advantage over potential competitors for a limited period of time, generally 20 years.
A patent protects the unique genetics of the product, but not the name. A company that holds a patent on a plant can legally prevent anyone else from marketing a genetically identical plant while the patent is viable. However, in order to have exclusionary rights to a brand name, a company would have to register for a trademark in every state in which it does business.
At this time, the USPTO is considering a number of patent applications for cannabis plants, although none have yet actually received a patent. Legal wisdom holds that now is the time for cannabis-based businesses to organize themselves regarding trademarks and patents. The patent application in particular can take some time to process, so businesses that apply early may have a market advantage as legalization takes greater hold across the country.