Updated: Feb 4
With so many states legalizing marijuana, the rate of trademark applications in the industry has gone up. As of today, 35 states have legalized the use of marijuana, with New Jersey (thank you neighbor!) and Arizona being the most recent to legalize the use of recreational marijuana. But many cannabis business owners are hitting roadblocks when it comes to registering their brands with the trademark office. The reason is that while legalization is a state prerogative, trademarks fall in the federal law realm.
The trademark office does not register marks that are related to the sale of illegal goods/services. The trademark office, being a federal organization, does not recognize the sale of cannabis related products or operating a cannabis clinic as a legal or legitimate business. When you make an application to the trademark office to register, for example, “Greenhouse” for sale of infused edibles, cannabis flower or for cannabis distribution, the application will be rejected. Applications relating to marijuana paraphernalia, such as, vapes, bongs, rolling paper etc., will also not be registered.
As more and more states legalize marijuana, the enactment of a federal law seems inevitable. Until then, us lawyers will need to come up with creative and innovative ways to secure trademark registrations for our cannabis business clients. One of the things we encourage our clients to do is to sell ancillary products and provide other services related to the cannabis business. The trademark office will allow trademarks to register if the application includes services like consulting, blogs or providing educational services relating to marijuana.
The goal is to secure a trademark registration for your brand in such ancillary categories so that when it is federally legalized, you can cite the previous trademark and to help secure rights in the actual goods/services.