Trademarks for Certain Cannabis Goods and Services Now Registrable by the PTO

Friday, May 10, 2019

The USPTO will now permit registration of marks identifying goods derived from “hemp” so long as the applications specify that the goods contain less than 0.3% THC.  Until recently, the U.S. Patent & Trademark Office (USPTO) has refused registration of trademark applications identifying goods encompassing marijuana (or parts of the plant Cannabis sativa L. from which marijuana is derived) because such goods were unlawful under federal law, and therefore their use could not support a valid use of the trademark in commerce.  With the passage of the Agriculture Improvement Act (the “Farm Bill”) signed into law on December 20, 2018, “hemp,” which is defined as Cannabis plants and derivatives containing no more than 0.3% THC (delta-9 tetrahydrocannabinol), are removed from the definition of “marijuana,” and are no longer controlled substances.  For applications filed before the December 20, 2018 enactment date of the Farm Bill, the USPTO will allow amendment in order make such applications eligible for registration.  However, in order for the mark to be registered, the hemp-related goods identified in the application must not be unlawful under other statutes, such as the Federal Food Drug and Cosmetic Act (FDCA).