Securing federal trademark protection for products derived from industrial hemp has proven to be a challenge for many in the industry. The United States Patent and Trademark Office (the “USPTO) categorically denies any trademark application that is submitted for an “illegal” product or service.1 Up until last year, Cannabis sativa L. was listed as a Schedule I Substance on the Controlled Substances Act (“CSA”),2 which meant that any product containing the substance, whether it be considered “hemp” or “marijuana,” would be incapable of trademark registration.
Two months have passed since the signing of the Agricultural Improvement Act of 2018 – or “2018 Farm Bill” – and despite its significance in the cannabis industry, confusion still surrounds the details of the legislation. In regard to hemp, the 2018 Farm Bill did two things: (1) redefined hemp as any part of the plant Cannabis sativa L., “and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis;” and (2) permits the cultivation of hemp through a program administered by a State Department of Agriculture or a Tribal Government.3 While the bill removed hemp from the list of federally controlled substances, there are several caveats to its legal sale, transportation, and usage.
The 2018 Farm Bill issued approval of hemp products so long as the THC content totals less than 0.3%, however, much debate remains over its permissible forms. Federal guidelines from the (“FDA”) specifically present significant obstacles. For example, the Federal Food Drug and Cosmetics Act still remains in effect and prohibits the usage of substances like CBD in edible forms despite the Farm Bill. California, New York, Maine, and Ohio have all officially taken steps to ban the sale of cannabidiol as a food additive or ingestible.
Another regulatory action targeting hemp and cannabidiol products is concerning product description and medical claims. The FDA has and plans to continue to take action against manufacturers and businesses that make any medical diagnoses, insinuate disease or illness prevention, or make further claims that suggest the products are pharmaceutical drugs or may be used as a federally approved medication. The FDA’s enforcement actions for both ingestible products infused with CBD and related materials that make medical claims are compliant with the terms of the 2018 Farm Bill, as the Farm Bill specifically states that it will not affect or modify the Federal Food, Drug, and Cosmetic Act, which would require any such products to formally complete the FDA’s drug approval procedures to be considered federally legal.
States are also still allowed to place restrictions on related hemp activities, or outright prohibit the substance, as is the case in Idaho, Nebraska, and South Dakota. By allowing for the states to determine their associated laws, cannabidiol and hemp have broad, state-specific legal grounds on which to operate. Furthermore, the 2018 Farm Bill was passed without specific details of when it would be fully adopted, meaning the legality of hemp and CBD products could still be in the process of finalization.
Some hemp and CBD-infused products, however, do exist and operate within existing regulations. Topical ointments and cannabidiol vaporizers have been allowed thus far without the same regulatory response as their edible counterparts.
Despite the confusion that has since followed its passage, the 2018 Farm Bill is expected to bring a boost to the hemp industry, particularly with regard to hemp. Because ointments and vaporizer products derived from industrial hemp are no longer subject to enforcement by the Drug Enforcement Administration (the “DEA”) under the CSA, and provided they do not violate any FDA regulations, a trademark application for these products and related services will have a strong defense to a rejection by the USPTO based on illegal subject matter. This is not a total green light, however, because the USPTO has not received implementation regulations for the 2018 Farm Bill.
For prospective hemp and CBD mark holders, the Intent-To-Use (“ITU”) application is going to prove to be an impressive resource. The ITU application permits a trademark holder to apply for registration for a trademark before the product or service is actually used in commerce. This means that while the USPTO awaits implementation regulations for the Farm Bill, an applicant can register the mark and receive the benefits of federal registration, including priority date of registration and enforcement rights against the use of the same or similar mark.
In sum, while not completely opening the door yet, the 2018 Farm Bill has sparked the race to trademark registration for hemp related products and services. Contact us today to discuss what options may be available to you and your business.
- 15 U.S.C. § 1052
- 21 U.S.C. § 801, et. seq
- P.L. 115-224 (2018)